HOA Law Blog

Blog post by David Swedelson

We hear these types of complaints all the time. While secondhand cigarette, pipe or marijuana smoke are the biggest sources of complaints, we are often asked to help associations deal with smells from other sources including cleaning products, paint and lack of ventilation, food and even perfume. I was reminded about this issue from an article that appeared in the Chicago Tribune newspaper.

As the article points out, “[w]ith many kids being asthmatic or allergic, and increasing numbers of people claiming chemical sensitivities, whether real or imagined, products that could become the trigger for an attack can become quite a hot button issue in certain associations.”

By David C. Swedelson, Esq. and Ryan D. Barrett, Esq., Community Association Attorneys

We recently published an article on secondhand smoke regarding its impact at condominium associations and how it can constitute a nuisance. Since almost every community association’s CC&Rs prohibit noxious activity, this is a fairly common and accessible means of addressing the issue. However, enforcing a nuisance claim has its challenges and drawbacks, namely, the subjective nature of defining a nuisance makes enforcement difficult, and the fact that each instance of a nuisance must be addressed individually does not make prosecution of these claims all that easy. But this is not to say that these claims are not enforceable or that California community associations should not take action, when appropriate, to eliminate nuisances.

A budding trend among community associations, or at least a topic of significant consideration, is to amend the CC&Rs to include the adoption of a community-wide smoking ban, restricting all homeowners from smoking anywhere within the Association, including their own units. While the adoption of such a ban has been historically difficult, in many areas, particularly in major cities of California, the climate is ripe for change.
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You may be asking what the heck a CC&R Cover Sheet is, as we expect that over time, this requirement has been forgotten. As provided for in amended Government Code Section 12956.1, which has been the law for at least 10 years, California community associations that provide a copy of the declaration (CC&Rs) must place a cover page or stamp on the first page of their CC&Rs stating, in at least 14-point boldface type, the following:

If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.

In October of 2011, Governor Brown signed AB 887 into law, which adds the characteristics of “gender”, “gender identity” and “gender expression.” AB 887 also amended California Government Code Section 12956.1 to require associations to place additional language on the cover sheet, and that language has been incorporated into the language in bold above.

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.
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