Condo Media - November 2014 - 29

by Patrick Brady, Esq.

Boards Must Respond When Residents
Complain About Secondhand Smoke

A

lthough the population of
smokers is declining, community associations continue to
struggle with disputes between
smoking and nonsmoking residents. A
California jury recently found a homeowners association negligent for failing
to resolve one such conflict.
Kim and Kai Chauncey complained
to the board of their Trabuco Canyon
Condominium community that their
neighbors - tenants renting an adjacent unit - smoked "incessantly" on
their patio and on the sidewalk in front
of their unit. They said the "constant
infiltration and presence of secondhand
smoke" created a health hazard for
their son, who suffered from asthma.
When the board failed to respond,
the Chaunceys rented an apartment
elsewhere and sued the association and
the management company, seeking
$120,000 in damages. A jury found
in their favor, awarding them $15,000
- $6,000 for economic damages and
$9,500 for emotional distress. That was
far less than the Chaunceys had sought
but enough to convey the jurors' belief
that secondhand smoke is a health
hazard and the association had a responsibility to address the Chaunceys'
concern about it and was negligent in
failing to do so.

A Study - in What Not to Do

Although this case does not on its face
seem to excavate any new legal ground,
on the smoking battlefield, it does provide a useful example for condominium
associations of the wrong way to manage smoking-related complaints.
Boards can't control smoking or any
other activities within units, unless the
activities violate an existing covenant or
bylaw. But they can adopt and enforce
rules governing behavior in common
areas. The Trabuco Canyon board, in
fact, had approved rules prohibiting
smoking around the swimming pool
and near a tot lot. Barring smoking on
sidewalks (which are common areas)
and patios (which are limited common areas) would have been a logical
extension of those existing restrictions
and an easy and nonintrusive way to
respond to the Chaunceys' complaint
about smoke infiltrating their unit.
The board had the authority to act,
and it did not. That's why the association
ended up on the losing end of this lawsuit.
Boards don't have to enforce every
rule or respond to every complaint.
They have some discretion in the rules
enforcement area, but their discretion
is limited. They can't ignore complaints
about issues affecting the health and
safety of residents, and smoking is

clearly on that list. The health risks of
secondhand smoke are well known,
and associations face potential liability
- far greater than this California jury
assessed - if they fail to respond to the
complaints of nonsmokers who claim
to have been injured as a result.

A Nuisance in California

A board's authority to address secondhand smoke complaints is clearer
and broader in California than in
most other jurisdictions, because a
California appellate court has defined
secondhand smoke as a "nuisance."
If a California condominium's governing documents include a nuisance
provision, as most Trabuco Canyon's
did, its board may be able to enforce
a rule restricting smoking within units
as well as in common areas. (As noted
earlier, the Trabuco board didn't have
to go that far, because the smoking
was occurring in common and limited
common areas.)
In Massachusetts, where the courts
have not produced a comparable decision defining secondhand smoke as a
nuisance, a board's authority to control
smoking stops outside a unit owner's
door. Associations that want to be
smoke-free must persuade a super majority of owners to amend their bylaws
Condo Media * November 2014

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Condo Media - November 2014

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