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Condos + Smoke = Trouble


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David Swedelson's presentation for CAI-GLAC regarding smoking nuisance in condominium associations.

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Condos + Smoke = Trouble

  1. 1. The Smoker Next DoorCondos + Smoke = Trouble CAI – GREATER LOS ANGELES CHAPTER MAY 23, 2012 DAVID C. SWEDELSON, ESQ. SWEDELSON & GOTTLIEB
  2. 2. Today’s Goals Touch on scale of problem with smoke Help you understand the building construction issues involved Update you on case law regarding smoking and noise Discuss what can be done “legally” to solve problems Discuss what can be done “physically” to solve problems
  3. 3. Why are these issues problematic for associations? Subjective nature of complaints Transient nature In multi-family housing, some levels of odor must be anticipated Other smells may also be irritants Lack of specificity in governing documents Conduct may have gone unrestricted for years
  4. 4. Smoking is notas pretty as itused to be.The good news is thatthe percentage ofCalifornians that smokekeeps dropping and isnow about 12%
  5. 5. How smoke moves through buildings Open windows and doors Cracks at base of wall Holes in walls or ceilings Ventilation system may be conduit Construction defects?
  6. 6. Not Just About Cigarettes Pipes Cigars Marijuana Incense
  7. 7. Air movesfrom highpressure tolow pressure High Low Pressure Pressure
  8. 8. Exhaust fanmay sucksmoke in fromneighboringunits Air AirTimers on Smoking pulled Lw Adjacent blownexhaust fans Unit through Unit Pressure outsideare not wallunderstoodEffects of wind
  9. 9. Building code on smoking Not addressed Some codes deal with air infiltration Some codes deal with distance between exhaust vents and windows or air intakes
  10. 10. Government Statutes/Ordinances  Utah passed a statute in 2006 that states that tobacco smoke drifting from one unit to another can be a nuisance if it occurs more than once in each of two or more consecutive 7-day periods.
  11. 11. Government Statutes/Ordinances  In January 2006, the State of California decreed that secondhand smoke was a toxic air pollutant.  Several cities in California have passed ordinances that ban smoking in condos.
  12. 12. Case law about smoking Fewer than 20 reported cases Cases started in the early 1990s Rulings are split Wide variety of legal theories are asserted Claims are asserted against the smokers, landlord unit owners and condo associations
  13. 13. Types of Breach of Covenantclaims filed in (1) Trespass (3)smoking cases Nuisance (9) Quiet Emotional Enjoyment Distress (5) (1) Warranty of Habitability (5) Defective Construction (1) Battery (2) Constructiv Negligence (6) e Eviction (2)
  14. 14. Who Prevails? Percentage Success32% Nonsmoker 68% Smoker
  15. 15. Who Prevails? Non-smokers prevail 68% of the time on at least one claim Smokers prevail only about 32% of the time Most of the asserted claims fail Many plaintiffs survive summary judgment but may not prevail at trial
  16. 16. Nonsmoker Asserted Claim Results8765432 Win1 Loss0
  17. 17. Factors in Smoking Cases Amount of smoke Where it originates How smoke gets in Promises made by landlords Sensitivity of the non-smoker
  18. 18. Can the Board refuse to get involved? Duty to investigate complaints Duty to enforce the Declaration Verification of the problem
  19. 19. Can condos ban smoking in units? One case supports the authority to do so No cases challenge the authority to do so Risk is that a restrictive covenant would be successfully challenged Examples
  20. 20. Are smoking claims covered by insurance? Most probably not covered Board actions about enforcement may be covered
  21. 21. Modifications to reduce smoke transmission Could be done by the association or required of (suggested to) unit owners Add pressurization fans Use smokeless ashtrays, air purifiers Seal baseboards and penetrations between units
  22. 22. Amend CC&Rs to prohibit or regulate Rule making authority of boards Ability to “restrict use” by vote of other owners Establishing measurable standards Are you regulating the activity, the annoyance, or the construction of the unit? Regulation of smoking in common and limited common areas Regulation within a home Can you regulate if no other resident complains?
  23. 23. What laws support regulation? Nuisance statutes Case law from states “Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other…if one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life” “Defendants’ conduct in smoking in the privacy of their own apartment was not so unreasonable in the circumstances presented as to justify the imposition of tort liability against them.”
  24. 24. Enforcement Problems Lack of proof about where smoke comes from or how it gets into a unit Difficult to inspect for violations Court enforcement may be impractical Fines may be ineffective Lack of objective measurement
  25. 25. Smoking Summary Can be regulated in common areas Case law supportive, but high standards Declarations supportive if you can prove annoyance Complete absence of smoke is unreasonable Standards on tolerable amounts in flux Building modifications may help Asking neighbors to modify behavior may help