HOA Rule Forbids Couple To Smoke In Their Own Home

[Desertdog]

 
 
HOA Rule Forbids Couple To Smoke In Their Own Home
Judge Upholds Homeowners' Association Order
http://www.thedenverchannel.com/news/10336501/detail.html


GOLDEN, Colo. -- A judge has upheld a homeowners association's order barring a couple from smoking in the town house they own.

Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking.

"We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio," Colleen Sauve said.
 

The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves' neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.

In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home.

Oeffler stated "smoke and/or smoke smell" is not contained to one area and that smoke smell "constitutes a nuisance." She noted that under condo declarations, nuisances are not allowed.

The couple now has to light up on the street in front of their condominium building.

"I think it's ridiculous. If there's another blizzard, I'm going to be having to stand out on the street, smoking a cigarette," said Colleen Suave.

For five years the couple has smoked in their living room and that had neighbors fuming.

"At times, it smells like someone is sitting in the room with you, smoking. So yes, it's very heavy," said condo owner Christine Shedron.

The Sauves said they have tried to seal their unit. One tenant spent thousands of dollars trying to minimize the odor.

"We got complaints and we felt like it was necessary to protect our tenants and our investment," said Shedron.

The Suaves said they would like to appeal the judge's ruling but are unsure if they have the money to continue fighting. They said what goes on behind their closed doors shouldn't be other people's business.

"I don't understand. If I was here and I was doing a lawful act in my home when they got here, why can they say, 'OK, now you have to change,'" said Colleen Suave. "We're not arguing the right to smoke as much as we're arguing the right to privacy in our home."

Other homeowners believe, as with loud music, that the rights of a community trump the rights of individual residents. The HOA is also concerned that tenants will sue those homeowners for exposure to second-hand smoke and this could be a liability issue.

The couple said that they would like to unload their condo and get out of the HOA entirely, but they are not sure if the real estate market is right. 
 

[Harold Tuttle]

Block advisor THX 1138 of the Eloian Fields HOA
is pleased to announce that only the neutrally scented
Soylent Green is acceptable for consumption in committee designated housing units.

[K Frame]

I don't smoke in my own house no matter what.

[mfree]

Whoaaah, this is a tricky one. Now, they *are* in their own home, but on the other hand they're directly causing discomfort and damage to another household because they're attached.

I think, in *this* case, this is a correct decision. If it was a case of a standalone home, there's no right at all for the government  or association to step in... but the fact that the housing is attached makes the difference.

EDIT TO ADD:

Yes, the HOA is out of line restricting smoking on the patio or in the parking lot. But *in* the house, that smoking is causing a cost hit to the neighbors, a direct depreciation of their property value.

Condos are the devil. Let's call them Commiedos

[charby]

I don't smoke in my own house no matter what.

I was hoping for a better answer from a former fearless leader  of a HOA 

[K Frame]

I'm still thinking about it.

But...

I see both sides of the issue here, and both are very, very valid.

Rights of property of both groups are being affected.

If something like this had come up during my tenure on the board, I'd have fought tooth and nail against getting involved, especially against passing a prohibition against smoking in the home. Largely not from any altruistic sense of property rights, but because you know it's going to kick off a law suit, which is going to cost the association money.

Ultimately, I'm going to have to side with the HOA and the people who live around the smokers.

The right to enjoy one's property free of interference from your neighbors, especially when they're conducting what is essentially a luxury activity, takes precedence, as far as I'm concerned.

I'd be very interested in hearing the back story, though, of what all led up to the board taking action in the first place.

Did the neighbors approach the couple? Was there an acrimonious relationship?

[Jamisjockey]

I dislike HOA's but I'm with them on this one:
Townhomes, therefore they are putting thier neighbors in danger from second hand smoke and fire danger.  Also, the smoke will permeate the residence and make it harder to sell, decreasing the value of the surrounding homes.  If they don't like it, sell and move to a non HOA, or less restrictive HOA.
PS, My home in VA is in a non HOA neighborhood.

[wingnutx]

This kind of thing is why I live in the barrio instead of an HOA neighborhood.

[Headless Thompson Gunner]

There's no excuse for building a townhome in which smoke and other odors pass from one unit to the next.  The problem lies not with the HOA for banning smoking, but with the construction company who built the townhomes such that smoking in one unit causes problems for residents in another unit. 

[Brad Johnson]

There's no excuse for building a townhome in which smoke and other odors pass from one unit to the next.  The problem lies not with the HOA for banning smoking, but with the construction company who built the townhomes such that smoking in one unit causes problems for residents in another unit. 

Depends on the age of the construction. If they were built prior to any requirements for an impermiable and fire-resistant barrier wall, I could see there being an odor migration issue.

Then again, some people with gripe and moan and try to foist their will on others whether there is an actual problem or not. We have some folks in the more exclusive HOA's around here that make the busybody lady in "Over The Hedge" look tame by comparison.

Brad