Think this is a free country? THINK AGAIN!!!
Don't get us wrong. We do not like smoking and wish everyone would quit. But is it the government's responsibility to ban such noxious habits? This country was founded on the principle of religious and personal freedoms, yet, good or bad, our country is also a nation of laws. And the current laws support the thinking that second hand smoke is the cause of disease.With that said, the latest Davis-Stirling newsletter addresses the problem of odors coming from a neighbor's unit of a condominium in an article called "incensed".
QUESTION. One of our owners is complaining because his downstairs neighbor burns a lot of incense, mostly late at night. The smell goes through the floor into his upstairs unit. What are the board's duties?
ANSWER. Because the odors may violate the nuisance provision of the CC&Rs, the board must investigate the complaint and make a good faith determination if the odors are excessive.
Nuisance. Owners do not have a right to be completely free of sounds and odors when they live in a condominium. To constitute a nuisance the noise/odors must be sufficiently annoying to cause an unreasonable disturbance to the free use of property by the owner in the adjacent unit.
Action. If, in the board’s opinion, the odors are strong enough to constitute a nuisance, the board must take appropriate action to stop the first owner from disturbing the second owner. A simple phone call or warning letter may cure the problem. If the owner ignores the warning [incense is often used to mask the smell of marijuana smoke], the board should give him a hearing and impose a fine for each nuisance violation.
If the owner wants to continue smoking pot . . . sorry, I meant burning incense, he could cure the problem by (i) buying a HEPA filter to clean the air in his unit, or (ii) sealing all penetrations in walls, ceilings and floors (at his expense) to prevent the smoke from migrating to surrounding areas.
If the fines do not cause the owner to cure the problem, the association can go into court for an order that the owner cease creating a nuisance.
Religious Observance. Even if the burning of incense is for religious purposes, the same rules apply.
Tobacco Smoke. Because of the problems associated with second-hand smoke, many associations are looking at going "smoke free" by amending their CC&Rs to prohibit smoking everywhere in the association, including owners' units.
In a case decided November 2006 in Colorado, an association banned smoking in owner's units because second-hand smoke was seeping into adjoining units. One of the owners (a smoker) sued. The court upheld the smoking prohibition and found that the CC&R amendment "was proper, reasonable, made in good faith and not arbitrary and capricious." Christiansen v. Heritage Hills
The city of Belmont in the San Francisco Bay area is currently considering a ban in all apartments and condominiums in the city. In 2003, the Seattle Housing Authority opened a smoke-free property, an 86-unit development called the Tri-Court. The restriction was imposed because residents with asthma, emphysema and other respiratory problems were asking for a smoke-free building.
- Adrian J. Adams, Esq. ADAMS & KESSLER LLP
posted by SFResidence.com @ 8:22 AM
1 Comments:
Actually, the Seattle Housing Authority imposed the restrictions as an accommodation to its disabled residents who were negatively affected by cigarette smoke.
That is considerably different than banning smoking completely which they have not done with their other buildings.
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