By Benny L. Kass
Saturday, May 26, 2007
Q: We own and live in a small condominium in the District. The tenant who lives below us smokes, and the smoke is entering our unit. We plan to have a baby soon and do not want the smoke to create health problems for us. What can we do?
A: If you live in Colorado, your association could prohibit smoking in the entire building, including inside individual units.
In November, Jefferson County District Court Judge Lily W. Oeffler upheld an amendment to a condo declaration doing just that. Colleen Christiansen and her husband, Roger Sauve, both smokers, owned a home in a four-unit condominium building near Denver. Two other unit owners (or their tenants) did not smoke; the fourth owner smoked, but only outside the building.
The other three owners tried to persuade Christiansen and Sauve to smoke only outside, but they were consistently rebuffed. The other owners also tried a number of methods to curtail the smoke, such as installing filters in the air ducts, but without success.
Finally, the association amended its declaration (one of the legal documents that creates a condominium) with the following language: "Smoking shall mean and include the inhaling, exhaling, burning or carrying of any lighted cigarette, cigar or other tobacco product, marijuana or illegal substance. No Owner, Guest, family member, tenant, resident, business invitee or visitor shall smoke cigarettes . . . within the boundaries of the Project. This prohibition shall include all Unit interiors, Common Elements And Limited Common Elements in the Project."
A 75 percent majority was required to pass the amendment, and three of the four owners voted in favor. Christiansen and Sauve filed suit, claiming that the association had no legal right to interfere with what is done within the unit itself.
Oeffler disagreed. After a two-day trial, she affirmed the validity of the amendment. She considered three factors:
In other words, if you own property in a community association, you are bound not only by the existing rules and regulations but also by any new procedure that is legitimately enacted by the required majority of the owners. In this case, the amendment required a supermajority of 75 percent, and three of the four units' owners voted for the smoking prohibition.
The court ducked the issue of whether secondhand smoke is a health hazard. Instead, the judge looked to the legal documents and discovered that they included a prohibition against nuisance. The judge found the following language in the declaration significant: "Nor shall any practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents."
Based on the testimony of the three owners, the judge said that "the issue of whether there was actual smoke or simply a smoke smell is irrelevant. . . . Clearly, the smoke smell constitutes a nuisance under these circumstances."
Finally, the judge dismissed the argument that the ban was unconstitutional. According to the judge, "courts have not specifically extended the protections of the Fourteenth Amendment to a fundamental right to smoke. . . . This is especially true here where plaintiff's private activities are impacting so negatively on the remainder of the community that they chose to join."
Tom Hindman, the Colorado lawyer whose firm represented the association, has told me that the case, Christiansen v. Heritage Hills 1 Condominium Association, was never appealed. Accordingly, even though it is a decision of a lower court, it stands as good law in Colorado.
Does that mean that your association could adopt such an amendment? There's no way to know. The facts are quite specific to that case: a small, four-unit building; unsuccessful attempts to negotiate a resolution with the smokers; and lots of dollars spent in an effort to curb the smoke.
Nevertheless, it remains an option for boards of directors to consider. What is clear, however, is that any such prohibition must be accomplished by an amendment to the association's bylaws or declaration; the board cannot impose a smoking ban simply by adoption of a rule or regulation.
This is a highly controversial and emotional issue. Indeed, at an earlier meeting of the Colorado condominium association on this issue, the police were called to stop the heated debate, which included allegations of harassment and abuse.
Full and open discussions must take place with all unit owners -- smokers and nonsmokers alike. Perhaps some compromise can be reached, such as allowing smoking in designated areas. In older buildings, structural engineers should be retained to recommend possible solutions.
But when all else fails, perhaps an amendment will work.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.
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