Dear Kelly,

My tenants are extremely allergic to smoke – the tenants next door smoke around the clock. I have been working with our board and management, and still the situation has not improved. Our CC&R’s call for “no noxious odors”. I may be losing my tenants. Any suggestions?

Thank you,

D.M., Costa Mesa

Dear Mr. Richardson,

I live in a gated community of single family homes on small lots. I’m wondering if there are any restrictions for cigarettes, cigars or pipes. One owner is asthmatic and lives next to a chain smoker that smokes only outside. Another dislikes the smell and must close windows when the neighbor smokes.

Thank you in advance,

T.G., Simi Valley

Hi Kelly,

The HOA Board made a rule a few years ago to make our complex a “non-smoking community.” This was done without any information to home owners or requested feedback. I recently learned that smoking is even prohibited inside units! I resent being told what I can or cannot do in my own home. What’s next? All lights out by 11:00? I smoke only in my living room and use a large air cleaner, with all windows closed. Regardless, my neighbor frequently complains smoke is coming in their unit. There is nothing in the CC&R’s about this. Can a board impose this rule on me?

LM., San Diego

Dear D.M., T.G, and L.M.,

Our society is smoking less. Adult tobacco smoking declined by 51% between 1988 and 2016 (California Department of Public Health statistics) and public acceptance of the habit also is clearly declining. Many California cities have various smoking bans in place.

Can smoking inside units be banned by a board-passed rule? Associations can ban smoking in common area, including exclusive use common area, since rules are designed to regulate conduct in common areas (Civil Code 4355(a)(1)). Civil 4355(a)(2) confirms that rules can also govern how members use their separate interests. So yes, L.M., the board could adopt a rule restricting smoking within homes, just as it could pass a rule limiting loud noises after a certain hour.

L.M. mentions that homeowners were not notified of the rule, so the rule may be invalid because Civil 4360 requires that proposed rules be published to the membership at least 30 days prior to adoption. This can be easily fixed by the board announcing a ratification of the current rule, at least 30 days after the announcement.

Whether or not the city or HOA bans smoking, it can also violate the general anti-nuisance provision in most CC&Rs and could also be a common law nuisance. Wood framed buildings are particularly susceptible to smoke migration, no matter how hard a homeowner like L.M. tries to control their smoke.

D.M. and T.G., I always urge homeowners to turn to lawyers as the very last resort. There was a case several years ago in which a homeowner sued their neighbor and the HOA regarding second hand smoke, and after weeks in court won a judgment (imagine the amount of attorney fees!). Go to your neighbor first, then go to the HOA if that doesn’t work. Avoid lawyers and court actions if at all necessary – the cost and relational damage is often not worth it.

Sincerely,
Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

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