Smoking Bans- Can They Apply To A Unit?

These days, particularly in light of the ban that passed as a result of the November elections, smoking has become a topic of heated debate.

There has been discussion among community associations whether the association can implement no smoking policies in relation to units and whether or not the association would impede an owner’s rights by doing so.

This issue recently came before a Colorado court after a homeowner’s association implemented a rule that barred a unit owner from smoking in their townhouse.

As the rule was written, the unit owner could not smoke in their own unit or anywhere on association property, including the parking lot or their own patio.

The unit owners, both smokers, filed a lawsuit against the association after the governing documents were amended to include this rule.

What prompted the rule change were the numerous complaints the association received from other unit owners, incidentally non-smokers, who could smell the smoke in their unit because they had neighbors who smoke. The smoke became a nuisance to the other unit owners because it traveled through the walls.

The Judge found that the association could keep the couple from smoking in their own unit. The court stated that “smoke and/or smoke smell” does not stay contained to one area and that the smoke smell constitutes a nuisance.

Most declarations contain provisions that prohibit a unit owner from creating a nuisance. Under the court’s logic, smoking, as a nuisance, can be prohibited in a unit and on association property.

As a result, the Colorado couple must go out to the street to smoke. The couple underwent modifications to their unit in an attempt to seal the unit to prevent the smoke from traveling to other units. Unfortunately, the neighbors could still smell the smoke emanating from the unit.

The association felt that due to the volume of complaints, it was necessary to take action to protect the other unit owners and their investment in their properties.
There was concern among residents about liability issues; for example, that the homeowners and the association could be sued from the effects of second-hand smoke for not taking any action to protect the health of its residents.

The couple argues that they have not done anything illegal and that they deserve the right to privacy in their own home.

The belief of the association and the other homeowners is that the rights of a community trump the rights of the individual resident. They compared it to complaints related to loud music that create a nuisance.

It is unclear whether the couple plan to appeal the decision of the trial court. However, the question remains, how much privacy are unit owners entitled to in a community association environment? And was this a legitimate liability concern of the association that they needed to take this type of action?

The full effect these types of bans will have on community associations will most likely be the subject of litigation for years to come.

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