Many community associations face an increased number of complaints from non-smokers about their smoking neighbors and are being asked to take action. Some associations are responding to this increased regulation by adopting smoking restrictions, while others

Smoking Regulations

Conflicts of Smoking in Community Associations

Many community associations face an increased number of complaints from non-smokers about their smoking neighbors and are being asked to take action.

The issue of secondhand smoke typically arises in condominium and townhome developments, where smoke can penetrate an adjacent home through walls via air ducts or heating vents, beneath doorframes and through windows. The smoker may be in any number of locations: outside in the common area; in a restricted common area location like a balcony or patio; in a common area hallway; or even in the smoker’s own unit.

While the nonsmoking neighbor’s complaint may run from general annoyance to worry about health risks to actual physical reactions to the smoke, the smoker generally retorts that, like the nonsmoker, the smoker too is an owner and a member of the association and is entitled to access and enjoy the development, including the smoker’s unit. Thus, the association is often placed in the middle of a pitched battle between nonsmokers and smokers, where the association is called upon to resolve the dispute.

Smoking Regulation in California

Associations have been placed in a difficult spot. While smoking is legal, it has been increasingly regulated in recent years as its health risks have become more widely known. Particularly in California, there are more and more smoking restrictions prohibiting where, and whether, smokers can light up. California now bans smoking in workplaces, restaurants, bars, and, most recently, in present. Various municipalities around the State have adopted ordinances prohibiting smoking, most notably, the City of Belmont, whose ordinance declares that secondhand smoke is a public nuisance and forbids smoking in apartments, townhouses, condominiums, and any other residential dwelling where there is a shared common floor or ceiling. Other cities, including DublinSanta Monica, and Calabasas, have adopted ordinances that prohibit smoking in all outdoor public areas.

HOA Smoking Restrictions

Some associations are responding to this increased regulation by adopting smoking restrictions, while other associations are opting to address secondhand smoke complaints on a case-by-case basis. Here, we will discuss HOA responsibilities and potential liabilities in relation to smoking within a common interest development, as well as considering whether and how an association might adopt a no-smoking policy.

Common Area 

Depending on what the association’s governing documents say will determine whether or not an HOA is allowed to restrict smoking in common areas. However, as a rule of thumb, where an association’s governing documents provide that the association owns, controls, maintains and is otherwise legally responsible for the development’s common area (Civil Code Section 4775), the board of directors likely can prohibit smoking in the common area. Common area may include outdoor areas like parking structures, swimming pool and recreational areas, or even interior hallways of apartment-style condominium buildings.

HOAs are obligated to ensure that common area is maintained in a reasonably safe condition, which entails proper maintenance of the common area to avoid safety hazards that could lead to personal injury, like protruding sprinkler heads, uneven sidewalks or non-functioning outdoor lighting. However, this “safety duty” may be expanded in the future by a court to include secondhand smoke.

In a recent California case, Birke v. Oakwood Worldwide, the court noted that the landowner (in this case, an apartment complex) owed a duty to the resident to keep the premises “reasonably safe” and that the landowner’s failure to adopt a no-smoking policy for outdoor common area could constitute a breach of that duty. The Birke decision implies that the association’s duty to maintain common area in a safe manner may include addressing the harm of secondhand smoke.

Although we do not know the outcome of the Birke case (because it was returned to the trial court for further proceedings) this decision suggests that California courts may be growing sympathetic to secondhand smoke complaints made by residents and that community associations could be found liable for not having outdoor common area smoking restrictions.

Exclusive Use Common Area

Again, the ultimate answer to HOA authority depends on what the association’s governing documents say.

Association control over exclusive use common area, like balconies and patios, can be difficult to determine. On the one hand, exclusive use common area is a type of “common area,” and, as such, can be regulated for all the same reasons that regular common area can, as discussed above. Often, the governing documents make the individual owner only nominally responsible for the upkeep and maintenance of the exclusive use common area by, for example, requiring owners to keep their balcony or patio in a “clean and sanitary condition.” This language typically means owners are expected to sweep their balconies or patios regularly and keep them free of debris and garbage, not that owners are obligated to maintain, repair, or replace their exclusive use common area. Usually, in situations like these, major repairs to the restricted common area and other maintenance work are performed by the HOA. In cases where the CC&Rs place minimal duties on owners, the HOA effectively controls and maintains the exclusive use common area and therefore may have the authority to ban smoking in these locations, just as it does with respect to common area.

On the other hand, some association governing documents make individual owners largely responsible for maintaining and otherwise controlling exclusive use common area, especially areas adjacent to an owner’s residence, such as a patio or a backyard area. Often in townhome developments, the governing documents will require owners to take full responsibility for maintaining backyard areas and patios, including the obligation to repair the patio slab, paint or maintain the fence, and maintain backyard landscaping (since the homeowner owns the individual lot). It may be more difficult for the association to assert that it has the authority to restrict smoking and other activities in these areas.

Homeowner Individual Units

Most governing documents provide associations with limited control over residents’ conduct in an effort to preserve property values and maintain a harmonious community. In fact, association boards of directors have a fiduciary duty to the association to make decisions and take actions in good faith that, in the board’s considered judgment, are in the best interests of the association (Corporations Code Section 7231), and one of the association’s primary tasks is to enforce the CC&Rs in an even-handed, consistent manner.

In general, restricting activities inside a residence is typically limited to extraordinary circumstances. Owners are responsible for maintaining everything within their dwellings, generally only subject to the association’s right to enter to address emergencies or situations of neglected maintenance causing damage to the common area. Moreover, the governing documents often provide that each owner is entitled to the quiet enjoyment of his/her residence.

However, many governing documents restrict inhabitants from “noxious or offensive conduct” that may be, or become, an unreasonable annoyance or nuisance to others in the community. A typical nuisance provision in a condominium association’s CC&Rs will provide as follows:

No noisy, hazardous, noxious, illegal or offensive activity shall be allowed on or emanating from any unit or from any portion of the properties, nor shall anything be done or kept in any unit or on the common area which may be or may become an annoyance, disturbance, nuisance, or safety hazard to the other residents of the association or the neighborhood, or which shall unreasonably interfere with the quiet enjoyment of other residents.

Nonsmokers often cite this “nuisance” restriction and demand that the association enforce it on their behalf, claiming that the smoke wafting from a nearby residence, balcony, or patio into their home constitutes a nuisance. To hold up in court, however, the nuisance must be a substantial invasion of the owner’s interest in the use and enjoyment of his or her property, based on an objective standard. If found as such, the HOA will typically have “standing” to enforce the nuisance provision.

While an association is allowed to consider the cost, potential results, and other impacts and concerns that may result from enforcing the CC&Rs, failure to enforce the governing restrictions could subject the association to legal liability. In addition, the transfer of smoke from one unit to another may be blamed on faulty construction or poor maintenance, and the nonsmoker may demand that the association correct these problems as well.

Adopting “No Smoking” Restrictions: Practical Considerations

There is no legal requirement that an association must adopt smoking restrictions, but there is legal support permitting associations to implement a smoking ban, or limitations, in common area, restricted common area, and even within units. Associations contemplating a “no smoking” policy would do well to survey owners for feedback, in addition to examining the structure of the building(s), ventilation systems, weather-stripping of doors and windows and related building components to determine how realistic, effective and desired a smoking ban may be in the community.

Requiring smokeless ashtrays, the installation of an air filtration system or other measures to effectively diffuse the smoke may offer workable limitations on smoking in communities with smokers. While it isn’t required, an HOA may want to consider a “grandfathering” provision to protect existing owners who smoke or designating certain locations and/or times for smoking.

Rules and CC&R Amendments

To restrict smoking, an HOA can either adopt a rule or amend the existing CC&Rs. Rules are typically easier to challenge, making a CC&R amendment a more concrete approach to smoking restrictions. Under California law, an amendment to the CC&Rs for smoking is considered reasonable, but still requires the quorum approval of the owners. If a board of directors feels itself unable to achieve this (and does not want to rely only on the nuisance provision in the CC&Rs), then adopting a “no smoking” rule would be the next option. Keep in mind that, depending on the governing documents, a “no smoking” rule may only apple to smoking the common area and exclusive use common area. The board of directors must also follow the legal procedures, which requires a 30-day comment period and a 15-day notice period following the rule adoption (Civil Code Section 4360)

Smoking Restriction Enforcement

Even with a valid smoking restriction in place, enforcement can be difficult. How will smoking in the community be monitored and policed? What amount of smoking constitutes a “nuisance”? Moreover, the association must be careful to ensure that its no-smoking policy is applied to all members in a fair and even-handed way, or else the association may potentially be subject to legal liability. Even without a no-smoking policy, associations must be aware of the potential liabilities they face when fielding a complaint from a resident about secondhand smoke, including heightened attention by members to this issue, and the allegation that the association is enforcing the governing documents in an unfair and discriminatory manner.

Conflicts are inevitable in community associations, especially in the close quarters of condominium and townhome living, and the fact that smokers believe that they have a right to smoke in their own homes while nonsmokers believe that they have a right not to be exposed to harmful secondhand smoke. For better or worse, associations are being placed in the uncomfortable middle of the battle between nonsmokers and smokers.

Adapted from an article by Lise Ström, an attorney in private practice. Contributions provided by David C. Swedelson, Esq., founding principal at Swedelson Gottlieb.