Clearing The Air in an HOA: Guide For Members Dealing With Secondhand Smoke

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The health hazards of secondhand smoke entered the public consciousness with a 1986 Surgeon General’s report.  Since then, state and local governments, and many homeowners and condo associations, have adopted policies intended to limit exposure.  Millions of former smokers have quit over the last few decades, and far fewer young people will ever pick up the habit.  Yet, in many communities, secondhand smoke remains a problem. 

Fortunately, though, it’s a problem that can often be addressed through well-drafted HOA covenants, prudent state and local laws, and inspired action by individual members.

What is Secondhand Smoke?

The federal Center for Disease Control and Prevention (CDC) defines “secondhand smoke” as smoke from burning tobacco products, such as cigarettes, cigars, and pipes, along with smoke exhaled by individuals smoking such products.  According to the CDC, secondhand smoke contains hundreds of toxic chemicals, including as many as 70 carcinogens. 

The U.S. Department of Health and Human Services (HHS) recently warned that even limited exposure to secondhand smoke can be harmful.  In children, this means, among other things, a significant increase in, or aggravation of, respiratory problems like asthma, ear infections, and even sudden infant death syndrome (SIDS).  Adults exposed to secondhand smoke are more likely to develop heart disease and lung cancer, or to suffer strokes.

Along with the health problems, secondhand smoke in residential areas also leads to higher upkeep costs - due to more frequent replacement of carpet, paint, curtains, and other fixtures necessitated by damage or staining from tobacco smoke - and an increased risk of fire.

Growing public awareness of the hazards of secondhand smoke has propelled efforts to reduce public exposure.  These efforts have been fairly successful, leading to a 65% decrease in the number of nonsmokers regularly exposed to secondhand smoke (per CDC statistics).  Even so, because secondhand smoke continues to cause conflicts in many homeowners’ associations, members need to be aware of their legal rights and available recourse options.

Legal Restrictions on Secondhand Smoke.

While the American legal system recognizes and guaranties numerous rights, the right to smoke is not among them.  Consequently, smoking can be restricted by law, regulation, ordinance, or private agreement.  Landlords can, and often do, include “no smoking” provisions in residential leases.  And businesses are free to institute no-smoking policies on their premises. 

Beginning in the 1990’s, state and local governments increasingly placed restrictions on smoking in public places.  Typically, these laws and ordinances apply to restaurants and other businesses open to the public – or to public facilities like parks.  But they can also apply to common areas within an HOA, like a recreational facility or sidewalk.  Many states also mandate smoke-free workplaces. See, e.g., Cal. Civ. Code §6404.5; A.R.S. §36-601.01.  In states with smoke-free workplace legislation, a staffed HOA office and other areas where employees work must be smoke-free.

Things are a little less clear when it comes to smoking in non-public spaces, particularly residences.  Because of the high priority the law places on property rights, state and local governments are somewhat reluctant to tell smokers they cannot smoke in their own homes, though local ordinances limiting or prohibiting smoking in multi-unit residential buildings are becoming more common.  Of course, any homeowner is free to prohibit smoking within his or her own home, and private organizations – such as homeowners associations – can enter into voluntary restrictions.

Numerous homeowners and condo associations have done just that – adopting covenants that limit areas within which members or their guests can smoke or, in some cases, banning smoking altogether.  To be enforceable, though, an association’s smoking ban must be adopted via the correct procedures.

Smoking Restrictions within an HOA.

An association’s declaration of covenants is essentially a contract between all of the members.  When new members purchase a home in a community with an HOA, they are deemed to have accepted all of the association’s covenants because the declaration is recorded with the land records of the county in which the HOA is located and is therefore a matter of public record.  Like other contracts, HOA covenants are presumed by courts to be enforceable, except to the extent a provision violates state or federal law, or “unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” Nahrstedt v. Lakeside Village Condo. Ass’n., 8 Cal. 4th 361, 386 (1994).

With that in mind, an association is generally unhindered from adopting whatever smoking restrictions are desirable to its members.  It can prohibit smoking in common areas but allow smoking within dwellings, or allow smoking outside in designated areas but not indoors.  An HOA can choose not to place any restrictions on smoking, or it can ban smoking altogether.  See, e.g., Christiansen v. Heritage Hills #1 Condominium Owners Ass'n, Co. Dist. Ct. Case No. 06-CV-1256 (2006).  The important thing is, whatever policy an association decides to implement, it should be adopted in accordance with state law and the declaration’s protocol.

Enacting Smoking Restrictions within an Association.

The neatest method of adopting a smoking restriction in an HOA community is to include the smoking policy in the declaration when the association is initially formed.  For already-existing associations, though, a new smoking rule will require an amendment to the HOA’s declaration.  Typically, this involves approval by member vote, followed by recording of the amended declaration in the county land records.  Amendment can require only a simple majority, a super-majority, or even unanimous approval of members – depending on the declaration and state law.

The balloting and amendment process can be cumbersome and may entail the association’s hiring a lawyer, but the democratic nature of the process tends to make members more accepting of the new rule, if passed.  In some cases, though, members who resist an amendment but lose the vote challenge enforcement of a new policy on grandfathering grounds, arguing that they have a vested right to continue using their property as it has been used in the past (i.e., a vested right to continue smoking on their property).  Courts’ acceptance of grandfathering arguments varies from jurisdiction to jurisdiction.  Inclusion of a grandfather clause within an amendment restricting smoking may be a means of overcoming resistance from existing members.  Such a clause would forego enforcement against existing members but apply restrictions to any new members after the effective date.

Once covenants are enacted, an association’s board has the power (and, indeed, the duty) of enforcement.  Enforcement procedures vary between states and associations, but, typically, enforcement begins with a warning letter and then escalates to fines, limitations on voting rights and use of common facilities, and, if necessary, lawsuits against non-compliant members.

Importantly, a board’s enforcement of covenants must be consistent.  A non-compliant member can assert as a defense that an association has waived the right to enforce a covenant due to inconsistent enforcement or prior non-enforcement of a covenant.  See, Liebler v. Point Loma Tennis Club, 40 Cal. App. 4th 1600, 1610-11 (4th Dist. 1995); Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003).

Alternatively, nearly every association’s declaration includes a “nuisance” clause prohibiting activities which diminish property values within the community or impede other members’ quiet enjoyment of their properties.  Nuisance provisions within a declaration can be broadly worded or define specific activities or conditions constituting a nuisance – such as continuously barking dogs or noxious odors.  Defining secondhand smoke that seeps onto neighbors’ premises as a “nuisance” may be an effective compromise that wins support of members who will not vote for an outright restriction or prohibition.

The downside to implementing smoking restrictions through a nuisance clause is that the approach is more ambiguous and therefore more difficult to enforce.  An outright ban on smoking in the community – or smoking in common areas – is clear-cut, whereas determining the point at which smoking becomes a “nuisance” is more subjective.

Some associations have tried implementing smoking restrictions by simply adopting a new HOA rule through majority vote of the board.  While this approach is quicker and cheaper than amending the declaration, members are less likely to acquiesce to a new policy for which they did not have the opportunity to vote. Moreover, board-adopted rules are much easier to challenge legally and tougher to enforce than formally enacted covenants.

HOA and Homeowner Secondhand Smoke Lawsuits.

As the risks of secondhand smoke became better-known, and as associations took steps to address those risks, it was inevitable that litigation would arise over secondhand smoke within HOA communities.  Both individual members and HOA boards have legal standing to file suit against non-compliant members to enforce community covenants.  And members can also sue the board for failing to enforce restrictions on smoking. 

Regardless of who actually institutes litigation, it’s worth noting that HOA declarations frequently include “fee-shifting” provisions, which require the losing party to pay the prevailing party’s legal fees.  Litigation is already expensive, and ending up on the wrong end of a fee-shifting award can substantially increase the cost.  One California court ordered an association to pay over $500,000 of a member’s attorney’s fees after the association lost a suit involving secondhand smoke.  Ritter & Ritter v. Churchill Condominium Assn., 166 Cal.App.4th 103 (2008).  So, before an association or member files suit, it’s generally a good idea to exhaust other remedies and to be reasonably confident of prevailing on the merits.

As noted above, courts throughout the country normally do not hesitate to enforce an association’s covenants and restrictions unless enforcement would unduly infringe upon a member’s rights or violate public policy.  The right to smoke is not guaranteed, so, absent a procedural deficiency in a smoking restriction’s adoption or a grandfathering defense recognized under state law, a suit to enforce covenants restricting or prohibiting smoking within an association is likely to succeed.  The resulting judgment can include an award of money damages, an injunction against further violations, or both.

Lawsuits over secondhand smoke within associations have not been limited to declaration enforcement.  Sometimes, no covenant relating to secondhand smoke is in place – or a declaration’s smoking provision does not specifically address the situation that is causing problems.  In those scenarios, homeowners have attempted alternative theories under the common law.

Common Law Causes of Action.

Common law claims are based on legal precedent handed down by courts over hundreds of years, rather than upon a specific statute or covenant.  Because they rely so much on judicial decisions, common law claims can vary considerably from state to state.  Thus, a common law action that might clearly succeed under one state’s precedent could be unavailable in another.  Homeowners vexed by secondhand smoke, but unable to rely on a clear covenant or statute, have asserted common law claims for nuisance, trespass, and breach of the covenant of quiet enjoyment, with varying levels of success.

The common law recognizes a cause of action for nuisance when “a condition or situation (such as a loud noise or foul odor) … interferes with the use or enjoyment of property.” Black’s Law Dictionary, 7th Ed. (1999).  Although most community declarations prohibit nuisances in general, that is not a prerequisite for a common law nuisance action, and an offended member can assert claims under both theories in a single suit.

Whether a nuisance claim relies on covenants, the common law, or both, the difficulty in prevailing arises from the ambiguity over what constitutes a nuisance.  Some states, such as California, have adopted statutory definitions.  See Cal. Civ. Code § 3479 (a “nuisance” is “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or property.”).  And the Utah legislature helpfully defined secondhand smoke as a nuisance if it encroaches onto another owner’s property “more than once in each of two or more consecutive seven-day periods [and] …  is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Utah Code Ann. § 78-38-1.

Jurisdictions throughout the country have historically held that conditions which substantially reduce air quality – such as a noxious odor or pollution – can qualify as a nuisance.  See Flansburgh v. Coffey, 370 N.W.2d 127 (Neb. 1985); Duncanson v. City of Fort Dodge, 11 N.W.2d 583 (Iowa. 1943).  And, in recent years, courts have held that secondhand smoke meets that criteria under the right circumstances.  See Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (2009). 

Similar to nuisance, civil trespass is a cause of action based on “an injury to or use of the land of another by one having no right or authority.” Guin v. City of Riviera Beach, 388 So.2d 604, 606 (Fla. 4th DCA 1980).  In the secondhand smoke context, plaintiffs have argued that drifting secondhand smoke amounts to a trespass which impedes the plaintiff’s ability to enjoy his or her premises.  For the most part, though, courts have been reluctant to sustain the theory.  See Boffoli v. Orton, 2010 Wash. App. LEXIS 807 (2010); DeNardo v. Corneloup, 163 P.3d 956 (Alaska 2007).

Breach of the covenant of quiet enjoyment is a common law claim, derived from landlord-tenant law, arising when a landlord impinges a tenant’s right to be free of unreasonable intrusions that impair the tenant’s use of a leased property.  A few courts have been willing to apply the doctrine to claims asserted by condo owners against their associations.  See, e.g., Martinez v. Woodmar IV Condo. Homeowners Ass’n, 941 P.2d 218 (Ariz. 1997); Frances T. v. Village Green Owners Ass’n, 723 P.2d 573, (Cal. 1986); Cowan v. Lakeview Vill. Condo. Ass’n, No. 250251 & 251645, 2005 Mich. App. LEXIS 223 (Mich. Ct. App., 2005).  An association member bothered by drifting secondhand smoke could rationally argue that the smoke diminishes the quiet enjoyment of his or her home.  However, as with the other common law theories, whether smoke is sufficient to qualify as an “intrusion,” and the extent to which the homeowner’s use has been diminished, are fact-specific determinations which would make the chance of prevailing uncertain.  Further, not all states will apply the tort outside of the landlord-tenant context.

Legal Relief under the FHA and ADA.

Under the right circumstances, aggrieved homeowners may be able to find relief from secondhand smoke under the federal Fair Housing Act (FHA) or Americans with Disabilities Act (ADA).  Both statutes offer protection against discrimination to certain classes of individuals, though both are also somewhat limited in their application.

The FHA prohibits discrimination in housing based on certain “protected classes” (e.g., race, religion, national origin).  42 U.S.C. §§ 3601, et. seq.  Smoking status is not a protected class, so the FHA does not prevent HOA’s or landlords from enacting policies that adversely impact smokers.  But “disability” is a protected class.  And, because the Department of Justice has consistently held that the FHA’s anti-discrimination provisions apply to homeowners’ and condo associations, it is unlawful for an association to discriminate against a person with a disability “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling.” 42 U.S.C. § 3604(f).

The key point, though, is that - for an individual to be protected as “disabled” under the FHA - he or she must have a mental or physical condition that substantially limits major life activities.  42 U.S.C. § 3602(h).  Courts have held that a serious respiratory condition, such as asthma or severe allergies, which makes a person exceptionally sensitive to secondhand smoke can qualify as a disability.  County of Fresno v. Fair Employment & Hous. Comm’n, 226 Cal. App. 3d 1541, 1550 (1991) (“To most people tobacco smoke is merely irritating, distasteful or discomforting. Someone who suffers from a respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is, nevertheless, physically handicapped…”).  Mere irritation, annoyance, or discomfort resulting from secondhand smoke is not a “disability” under the FHA.  Donnelley v. Cohasset Hous. Auth., No. 0100933, 2003 WL 21246199 (Mass. Super. Ct.  2003).

The ADA uses a definition of disability similar to the FHA but is not as generally applicable to homeowners’ associations.  The law prohibits discrimination against disabled persons in employment, transportation, public accommodations, communications, and access to government programs and services.  42 U.S.C. § 3601, et seq.  So, an HOA that is not involved in any of those activities is not subject to the ADA.  If an association has facilities open to the general public (e.g., a public gym or pool), provides a shuttle service or other transportation, or has 15 or more employees, it is potentially subject to the ADA.

Assuming a member qualifies as disabled, the FHA and/or ADA mandate that the association make “reasonable accommodations” to allow the disabled member to enjoy the use of his or her home and any public accommodations maintained by the HOA.  A reasonable accommodation can include a “change, exception, or adjustment to a rule, policy, practice, or service…” See Joint Statement of HUD and Dept. of Justice, Reasonable Accommodations under the Fair Housing Act (2004).  As long as a requested modification is directly related to a disability, an association must honor the request unless “it would impose an undue financial and administrative burden … or it would fundamentally alter the nature of the [association’s] operations.” Warren v. Delvista Towers Condo. Assoc., 49 F.Supp. 3d 1082 (S.D. Fla. 2014).

A reasonable accommodation for a member with severe asthma might be for the association to modify its smoking policies to remove the risk of secondhand smoke seeping into the member’s home.  Or, if the aggrieved member encounters secondhand smoke in common areas, the association could prohibit or restrict smoking in those areas.  In a non-HOA context, the Second Circuit has held that a blanket prohibition on smoking in a public area can be a reasonable accommodation.  Staron v. McDonald’s Corp., 51 F.3d 353, 357-58 (2d Cir. 1995).

A member with a legal disability, and who is prevented from fully enjoying the benefits of his or her home due to the effects of secondhand smoke on that disability, should first make a written request for reasonable accommodation to the association.  If a resolution cannot be reached, the FHA permits either an administrative complaint to the Department of Housing and Urban Development or a private civil action.  Or, if an association denies a request for reasonable accommodation relating to a disabled member’s use of public facilities, the member can file a complaint under the ADA with the Department of Justice or a civil suit in federal district court.

Steps for Addressing Secondhand Smoke.

It’s important to recognize that legal action is not always necessary to successfully resolve problems with secondhand smoke.  In many instances, a polite, non-confrontational conversation with the offending neighbor is all it takes to fix the situation.  It could very well be that the smoker is not aware that secondhand smoke is drifting into other residences and will voluntarily agree to modify his or her habits upon being made aware.

Unfortunately, though, not everyone is quite so understanding. If the problem persists, the aggrieved member should keep thorough documentation:  copies of any written complaints or letters, a log of incidents of smoke seepage, any receipts resulting from extra cleaning costs made necessary by the smoke, photographs of any visible smoke or residue, and – if secondhand smoke is causing health problems – any related medical records.

From there, the next step will depend upon whether the association’s covenants address smoking and whether there are any applicable state or local laws.  If the association has a smoking covenant that is being violated, an affronted member should bring the matter to the attention of the board and request that the board take action to address the violation.  If the board refuses to take enforcement action, the member can take legal action against the board or campaign to elect new board-members.  Or, if no applicable covenant is in place, the member can organize a vote to amend the declaration.

If the offensive secondhand smoke violates a local ordinance or state law, the member can raise the issue with the law enforcement agency responsible for administration.  This might be a sheriff’s department, local police, health department, or a city or county commission.  Ordinances and state statutes are almost always publicly available online and usually relatively easy to locate and review.  If necessary, an attorney can help to identify and interpret the applicable code sections.

Although sometimes unavoidable, lawsuits against a non-compliant member or unresponsive board should be viewed, for the most part, as the option of last resort.  Litigation is expensive and time-consuming, and it frequently leads to permanent hard feelings.  As mentioned above, HOA suits often involve fee-shifting, so a losing party can also get stuck footing the bill for both sides. 

In some limited situations, a member offended by secondhand smoke can bring a small-claims court action on his or her own behalf.  However, jurisdiction of small claims courts is somewhat limited, and they usually cannot issue injunctions – whether to order a member to cease violating the community’s declaration or to direct a board to enforce covenants.  If anything beyond a relatively small amount of monetary damages is at stake, an association member who needs to file a lawsuit to enforce covenants or spur action by a reluctant board should contact an attorney with experience in HOA matters for advice as to how best to proceed.