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HOA Rule Forbids Couple To Smoke In Their Own Home Judge Upholds Homeowners' Association Order
TheDenverChannel.com ^ | 11/16/06 | TheDenverChannel.com

Posted on 11/17/2006 10:46:11 AM PST by TheKidster

GOLDEN, Colo. -- A judge has upheld a homeowners association's order barring a couple from smoking in the town house they own.

Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking.

"We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio," Colleen Sauve said. The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves' neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.

In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home.

Oeffler stated "smoke and/or smoke smell" is not contained to one area and that smoke smell "constitutes a nuisance." She noted that under condo declarations, nuisances are not allowed.

The couple now has to light up on the street in front of their condominium building.

"I think it's ridiculous. If there's another blizzard, I'm going to be having to stand out on the street, smoking a cigarette," said Colleen Suave.

For five years the couple has smoked in their living room and that had neighbors fuming.

"At times, it smells like someone is sitting in the room with you, smoking. So yes, it's very heavy," said condo owner Christine Shedron.

The Sauves said they have tried to seal their unit. One tenant spent thousands of dollars trying to minimize the odor.

"We got complaints and we felt like it was necessary to protect our tenants and our investment," said Shedron.

The Suaves said they would like to appeal the judge's ruling but are unsure if they have the money to continue fighting. They said what goes on behind their closed doors shouldn't be other people's business.

"I don't understand. If I was here and I was doing a lawful act in my home when they got here, why can they say, 'OK, now you have to change,'" said Colleen Suave. "We're not arguing the right to smoke as much as we're arguing the right to privacy in our home."

Other homeowners believe, as with loud music, that the rights of a community trump the rights of individual residents. The HOA is also concerned that tenants will sue those homeowners for exposure to second-hand smoke and this could be a liability issue.

The couple said that they would like to unload their condo and get out of the HOA entirely, but they are not sure if the real estate market is right.


TOPICS: Constitution/Conservatism; Culture/Society; Government; Miscellaneous
KEYWORDS: readthecontract; smoking
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To: LetsRok
That's your privilege, but don't come back here whining when the HOA elects the kook down the street that has no life but wants to run yours.
101 posted on 11/17/2006 11:18:51 AM PST by bigfootbob
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To: Publius6961
Does your "majority vote" refer to the board of directors? or the homeowners?

It differs from HOA to HOA.

If the majority vote so decrees, is it legal?

HOAs, as enterprises organized according to the laws of the state in which they are located are subject to the law of thatb state.

Therefore, an HOA outlawing blondes is a legal impossibility, since it would contravene the law of any state.

102 posted on 11/17/2006 11:18:56 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: Beelzebubba

I take it your answer was no? Silly laws result from silly people. Just because it hasn't happened , doesn't mean it won't. We have a 5 foot easement on both sides of our house. People can build within 10 feet of each other. What's to keep a non smoker from seeing a neighbor light up and try to change the HOA to no smoking in houses now?


103 posted on 11/17/2006 11:18:57 AM PST by CindyDawg
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To: Beelzebubba
They are also inherent enhancers of property value, and are to be considered as wise economic choices.

I agree.

104 posted on 11/17/2006 11:19:29 AM PST by Howlin
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To: TheKidster
I keep waiting for the day when the Hindu family next door is offended by the smell of barbeque beef coming from next door.

Will outdoor grilling be next? How about indoor cooking of beef too, just because we know it's going on, and that offends us, too.

-PJ

105 posted on 11/17/2006 11:19:32 AM PST by Political Junkie Too (It's still not safe to vote Democrat.)
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To: cwat212
I know I would go crazy if smoke from my neighbor's unit was coming into my condo. I can't even stand a hotel room that has been smoked in.

I have personally provoked the vapors in some people by simply having a fake cigarette in my mouth in commercial establishments.

This is clearly a neurosis.

We must realign all of the acceptable behaviors of society now to accomodate the insane?

106 posted on 11/17/2006 11:19:47 AM PST by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: CindyDawg
How do you change oil or fix it then? Around my neighborhood, which is causally nice, RVs and boats are put beside the house on their special driveway:')

You take it to the dealership. My HOA does not allow anything more than washing and waxing in the driveway. I had to discard my ramps when I moved here. Part of the fun of owning a car is the routine maintenance. You can work in your garage if no one can see.
107 posted on 11/17/2006 11:19:54 AM PST by LetsRok
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To: TheKidster

"I think it's ridiculous. If there's another blizzard, I'm going to be having to stand out on the street, smoking a cigarette.."

;-) I remember when municipal buildings in Anchorage banned indoor smoking in the '80s. You walked out the door and smokers on breaks would be huddled under a warm HVAC unit, boots and parkas, smoking their cigarettes. So funny. As the months went by, the groups got smaller. So to answer this person... yes, you might have stand outside smoking a cigarette; you won't be the first, Honey.


108 posted on 11/17/2006 11:20:14 AM PST by MayflowerMadam
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To: Disambiguator

looking at the video looks like this was a condo conversion from apts to condos. Apt walls are very thin


109 posted on 11/17/2006 11:20:26 AM PST by markman46 (engage brain before using keyboard!!!)
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To: 3AngelaD

Youd never get the fish smell oout.


110 posted on 11/17/2006 11:20:40 AM PST by ichabod1 (Democracy = Anarchy)
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To: twigs

So I guess your boss never goes to a mall or grocery store or gas station or rents a video or takes a walk...?


111 posted on 11/17/2006 11:20:41 AM PST by Clock King ("How will it end?" - Emperor; "In Fire." - Kosh)
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To: -YYZ-

That's true. I remember that now in 1984!


112 posted on 11/17/2006 11:20:43 AM PST by twigs
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To: cwat212
Again, true. The principle seems to be the same: you can play music, as long as I don't have to hear it also. You can smoke, as long as I don't have to smell it also.

Curious that we don't see more people arguing against noise restrictions. I would think they'd feel the same way about them. ;)

113 posted on 11/17/2006 11:20:44 AM PST by TheBigB (Do you think "Lady in the Water" is in Ted Kennedy's NetFlix queue?)
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To: CindyDawg

I lived above a person that smoked years ago. I don't know how it came through, but it did. My apartment reeked.

I moved when my lease was up and didn't have the trouble anywhere else I ever lived, so maybe it was the structure?


114 posted on 11/17/2006 11:22:03 AM PST by 2Jedismom (http://kimsbug.blogspot.com/)
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To: LetsRok

No way is my husband going to spend a couple of hundred on an oil change. He would be having me hold a flash light under a blanket, at dark, first:')


115 posted on 11/17/2006 11:22:07 AM PST by CindyDawg
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To: TheKidster
it is completely antiAmerican!

So because you don't agree with it, those of us who do live in HOA neighborhoods are unAmerican?

116 posted on 11/17/2006 11:22:42 AM PST by Howlin
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To: Clock King

I really don't know how he does it. He owns the business so he gets to do what he wants to do. He's actually thoughtful, so I have no complaint. And he signs my paycheck, so no perfume. I've wondered how he gets along too. We fired our cleaning staff because they kept using chemicals. We have gone to a vinegar-based cleaning system, but his wife has to come in and do it.


117 posted on 11/17/2006 11:23:06 AM PST by twigs
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To: LetsRok

Your attitude is the problem with America today. Your convenience and how people percieve you is all that matters to you. I wish people in this country would stop being so self absorbed and conceited, constantly on the look out for that which offends them.
"I don't want people to drive by my house and group me with that grease monkey next door who is working on his car"

Yeah, what kinda lowlife scumbag actually changes his own oil or does his own auto repair? I'm definitely a more valuable and better human being than they are. I pay others to perform such menial labor that I am above doing.


118 posted on 11/17/2006 11:23:21 AM PST by TheKidster
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To: TheKidster
Property rights in a condominium are a squishy sort of thing.

Condos suck.

119 posted on 11/17/2006 11:23:25 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
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To: bigfootbob
>>You would deny a property owner the right to place beneficial restrictions ON HIS OWN PROPERTY!


What the hell are you talking about? I'm BUYING the property, it is mine,


Ahhh. You miss the key point, grasshopper.

The point is that the DEVELOPER owns the property all at one time, and puts whatever lawful restrictions (and right to amend) he believes will be most attractive to the market, and will maximize the price.

It's HIS property right to do so. Then, when I come along, enamored by the restrictions he has applied (say, because I hate junkers, basketball hoops, or the color pink) that restriction is lawfully continued, and I enjoy the lawful right to enforce it against the other properties that the developer originally owned. That is MY property right.

When some moron comes along, reads the rules buys anyway, then insists on behavior that either violates the rules, or is so much a nuisance that it leads to lawful rule change, then his effort to continue his behavior is the offense against property rights.

But I grant that there are a lot of morons who buy with no clue about the restrictions. I have no sympathy for them.
120 posted on 11/17/2006 11:23:56 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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