We’ve all been there. You’re outside, maybe in a park, and you get a whiff of someone’s cigarette. If you’re one of the more than 38 million Americans who smoke, you may not think twice about it. But if you’re one of the other 290 million Americans who don’t smoke, then it’s likely offensive to you. Smelling smoke in a park is one thing, but what if you’re in your townhome living room watching TV?
The logical next question is, may homeowner associations enforce rules against smoking in individual units? Well, at least one court in Colorado has ruled that a homeowners association may structure their CC&Rs to reflect an anti-smoking position (see Christiansen v. Heritage Hills 1 Condominium Owners Association). While the ruling was somewhat case specific, it does provide some insight as to how best to craft an anti-smoking rule in an HOA. Some of these takeaways are:
- Taking action to mitigate the intrusion of smoke prior to making rules against smoking in units is advisable, as it may demonstrate that the association did not act arbitrarily;
- When considering the imposition of a rule against smoking, an association should be sure to base that rule on existing authority in its governing documents, such as an anti-nuisance provision;
- Under the circumstances presented in this case, the smoke smell clearly constituted a nuisance.
While there are some common suggestions an association may take, such as considering a rule against smoking in common areas, no two associations are exactly alike. Therefore, when considering a rule against smoking in areas other than common areas, an Executive Board should engage in extensive consultation with its members. They should also consider consulting with an experienced community association attorney regarding the enforceability of any considered rule.
For additional information on smoking in a common interest community, please see Smoking in Your Community – Is it a Nuisance? by Mark K. Payne of the law firm Winzenburg, Leff, Purvis & Payne, LLP, and Cigarettes and Condominiums - What's a board to do? by the law firm Altitude Community Law.