By David C. Swedelson, Esq., Condo and HOA Attorney
Recent reports indicate that only 12% of California adults smoke cigarettes. The problem is that they all live in condominiums, or so you would think from all the reports of problems we are receiving relating to complaints from the non-smokers who do not want to smell cigarettes.
And the issue is not limited to cigarettes; we are hearing a lot of complaints regarding pipes, cigars and marijuana. And marijuana is becoming one of the more difficult issues to deal with, as the smokers are not that considerate, and those with medical marijuana cards think that they are impervious to criticism or the complaints of others. But the fact is that smoke can be a nuisance, and nuisance is prohibited by just about every California community associations’ CC&Rs.
Someone saying that their legal right to smoke trumps the rights of the other owners is like saying that an owner can maintain their seeing/emotional support animal in violation of the CC&Rs even though the dog barks all night. I trust you get the point that no one can create a nuisance.
Because secondhand smoke is injurious to health according to most experts, many states and local governments, even low levels of exposure can be considered a nuisance. Many condominium associations are adopting or considering the adoption of restrictions or prohibitions on smoking in the common areas, exclusive use common areas such as balconies and patios, and even units.