SMOKING INSIDE UNITS

QUESTION: Recently, a renter moved in and he smokes everywhere. He leaves cigarette butts everywhere and we can smell the smoke in our units. 99.9% homeowners are non-smokers. Can we ban smoking in the common areas? Can we ban smoking inside units?

ANSWER: Yes to both questions. In a written opinion by the Public Health Institute, people do not have a fundamental right to smoke. Most associations already ban smoking in their common areas. There is a growing movement to restrict or ban smoking inside owner's units as well because of fire safety and nuisance reasons.

City Bans Smoking. The City of Belmont recently passed the toughest anti-smoking law in the state. The ordinance declares secondhand smoke a public nuisance and forbids smoking in apartments, townhouses, and condominiums that share a common floor or ceiling (see Belmont ordinance). Oakland recently extended its outdoor smoking ban to include parks, bus stops and outdoor eating areas, and mulled over a ban on smoking in apartments and condominiums. Calabasas is considering a requirement that all new buildings, including condominiums, be smoke-free.

Court Upholds Ban. Judges are increasingly open to the argument that secondhand smoke is a nuisance akin to loud noise. In Colorado, an association amended its CC&Rs to ban smoking inside units. The restriction was challenged by smokers. The court rejected the smokers' argument that the restriction exceeded the association's authority. The judge noted that second-hand smoke is a nuisance and upheld the CC&R amendment as proper and reasonable. Christiansen v. Heritage Hills

If your association would like to adopt rules or amend its CC&Rs to restrict second-hand smoke, contact us.

Updated by ADAMS KESSLER 8/29/2008