Clearing The Air: Dealing With Secondhand Smoke in Your HOA
An HOA can choose not to place any restrictions on smoking, or it can ban smoking altogether. Adopting protocols that align with state laws and declarations is essential, whatever the outcome.
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 fewer young people are picking up the habit. Yet, in many communities, secondhand smoke remains a problem. Fortunately, addressing the problem with well-drafted HOA covenants, prudent state, and local laws, and inspired action by individual members.
Secondhand Smoke
The US 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.
Besides 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 fire risk.
HOA Smoking Restrictions
An association's declaration of covenants is a contract between all members. When new members purchase a home in a community with an HOA, they are to accept all of the association's covenants because the declaration is with the land records of the county where the HOA is located and is, therefore, a matter of public record.
Adopting a Smoking Restriction
Adopt a smoking restriction that includes the smoking policy in the declaration. 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 a recording of the amended declaration in the county land records. Depending on the declaration and state law, an amendment can require only a simple majority, a super-majority, or even unanimous approval of members.
The balloting and amendment process can be cumbersome. It 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 exemption arguments varies from jurisdiction to jurisdiction. Including a 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 enacted, an association's board has the power and responsibility 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 shared facilities, and, if necessary, lawsuits against non-compliant members.
HOA Nuisance Clause and Secondhand Smoke
Notably, a board's enforcement of covenants must be consistent.
Alternatively, nearly every association's declaration includes a "nuisance" clause prohibiting activities that 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 a practical compromise that wins the 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 could be more transparent and easier to enforce. An outright ban on smoking in the community or 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 adopting a new HOA rule through a 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 more rigid to enforce than formally enacted covenants.
Steps to Address Secondhand Smoke
It's essential to recognize that legal action is only sometimes necessary to resolve problems with secondhand smoke successfully. Often, 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 unaware 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 someone violates the association covenant, an affronted member should bring the matter to the board's attention and request that the board 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, which might be a sheriff's department, local police, health department, or a city or county commission.
Ordinances and state statutes are publicly available online and relatively easy to locate and review. If necessary, an attorney can help to identify and interpret the applicable code sections.
Lawsuits as a Last Resort
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, frequently leading to permanent hard feelings. As mentioned above, HOA suits often involve fee-shifting so that a losing party can 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 behalf. However, the 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.
Suppose anything beyond a relatively small amount of monetary damages is at stake. In that case, 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 on how best to proceed.
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