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BANNING
SMOKING
IN
CONDOMINIUMS
 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. There is no constitutional right to smoke and most
associations already ban smoking in their common areas. There is a growing movement
to ban smoking inside owner's units as well.
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 ban
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
RECOMMENDATION:
A rule change is sufficient to ban smoking in the common areas. Boards can adopt a simple one-line rule
that "Smoking in the common areas is prohibited." In addition, boards
can expand their nuisance policy regarding smoking in the units.
Sincerely yours,
Adrian Adams, Esq.
Adams Kessler PLC
QUESTIONS ABOUT
NEW AGENDA LAW
 QUESTION: Is it acceptable to post
the notice of meeting and agenda on our message board or
do we need to mail it?
ANSWER: Yes, if the bulletin board is
located in a prominent place within the common area. The new law does not
change the requirements in Civil Code section 1363.05 for giving notice of
board meetings, except that after January 1, 2008, the notice must also
contain the agenda for the meeting. Thus, the association must notify
members of board meetings by posting the notice and the agenda “in a
prominent place or places within the common area” and by mailing it to any
owner who so requests. Additionally, section 1363.05 states that notice of a
board meeting (including the agenda) “may also be given by mail or delivery
of the notice to each unit in the development or by newsletter or similar
means of communication.”
QUESTION: Many of
my associations post their meeting notices on an outdoor
bulletin board that don't have enough room to list
agenda items. Does this mean they can no longer inform
owners in this way?
ANSWER: Your associations should install
larger bulletin boards. The alternative is to mail or deliver notice to each
unit in the development at least four days prior to the meeting. (see new
1363.05(f))
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Very truly yours,
Gary Kessler, Esq.
Adams Kessler PLC |
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