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.
It was Michael Keaton. And, that was terribly creepy.
I wouldn't buy in a HOA. If I own it, I'll do with it as I damn well please. Besides, I'll never own a $400k-$500k house, so I needn't worry about the redneck ruining the neighborhood. But if I did own a home like that, I'd be taking a good look around everytime it rained...surely one or two of the neighbors would drown, what with their noses so high in the air.
There you go, you proved my point. Elitism coupled with extreme conceit equal HOA busy bodies, and nanny state legislation.
Homeowners associations are like little governments, but without even the minimal checks and balances on arbitrary and capricious behavior that governments have. I Would NEVER buy a house in a community where you have to be a member of the HOA and be subjected to the whims of malicious busybodies who end up as board memebrs in those things.
"The peeves of the many outweight the rights of the few."
-- Mr. Spock
I lived by a family when I was a kid, both people smoked. I never would have known it if I hadn't gone in their home to play with their kids. What this tells me is that homeowners ASSes are just little dictatorships where a few can dictate to everyone else how they live their lives. I know it is voluntary, but rules can be changed by the "I will tell you how you are going to behave" Nazis and that is just ridiculous.
Be soothing Dave
No it isn't. Our country was founded on among other important principles, private property rights. If I own land I should be able to do anything I want within the law. Private clubs and social or professional organizations don't have the power to take my home from me if I paint a color some bored old ditty down the street doesn't like.
Remember the phrase live and let live. We don't hear it much anymore because of the mindset it seems you are expressing.
That would be a good compromise.
See? How hard was that?
You know, I don't smoke...but when I had my pet chickens I was constantly concerned they'd stink and bother my neighbors. Before I knew better, I had a light on out there 24 hours a day and my hens were confused and would lay eggs in the middle of the night! Well, when hens lay, afterward they're so proud of themselves that they bock loudly for a few minutes. I would be running out there in the middle of the night shush-shushing my hens trying to get them to shut up so they wouldn't bother our neighbors! I learned that I needed to turn the light off at night...that way they'd go to sleep and not lay.
Heh!
But if someone had complained about my hens stinking, I would've just died. I didn't want to bother anyone!
We have a leash law in our town and no dog is supposed to be out without being controlled by a leash. A woman down the street just let her dog out to poop where it would (neighborly, huh?) and it dug under my fence and killed my hens. Had my dog done something like that, it would've upset me terribly...I would've been so sorry. This woman's response? She said "Well, I guess I'm gonna have to pay for them chickens."
I don't know sometimes which made me feel worse...the loss of my pets or this woman's response.
I think that's the malady at the bottom of much of this nanny stater crap.
I have been very concerned about the intrusion of HOAs into the lives of people who own homes in the covered community. If you pay multiple thousands of dollars to buy a piece of property you should have the freedom to live as you like as long as your lifestyle is reasonable. As for what is reasonable, I think the common sense rule should apply. It is very scary how much liberty people are willing to give up to government and other organizations.
But I think the key here is that the HOA changed the rules after the people had moved in. The rules at closing allowed smoking in their unit. This seems like an ex post facto issue if I have my law term right.
Put all the restrictions you want on your property but you're acting like a Cuban dictator when you try to impose restrictions on my property (outside of the law).
That is an excellent point! The complaint was that the odor is a nuisance, not second-hand smoke causing the neighbors some kind of harm. So, by that logic, yes, cooking with curry could be banned as well.
An excellent demonstration of just how absurd the ruling is, because you would NEVER, in a MILLION YEARS, get a judge to uphold a rule against cooking with curry in your own home (or maybe you could, in the 9th circuit...).
Betty Crocker brownie mix...
The ruling is not against "property rights." This requirement is an example of freedom of contract.
First you can't decide to be a part of the HOA. If you buy a property covered by an HOA you are a member and must abide by the rules. Secondly, if I am reading the article correctly, the HOA changed the rules after they moved in. I think they have a very strong case for appeal on the last point.
Nobody is forced to buy in a condo with a HOA. If signing is a condition of purchase, one doesn't need to purchase or sign.
Because some like HOA's, I do for one, doesn't mean everyone does. But the HOA can be very useful to maintain prop values and to settle disputes. Neighbors can be pains in the butt, can destroy a streets value and can be dangerous.
That's how things used to be taken care of before we all the baby boomers who never outgrew the conceit and self absorded mindset they gained during the hippy era got into government.
What does this have to do with this article? Did you live in this same condo building? Are you attesting to the fact that there was no smoke going from one unit to the other?
Or are you just telling a story for no reason?
Do you believe it impossible for smoke to travel from one unit to another when they share walls?
What this tells me is that homeowners ASSes are just little dictatorships where a few can dictate to everyone else how they live their lives.
This tells me you don't understand the nature of the complaint. This isn't someone telling someone living a 1/4 mile away what to do. This is a person in an apartment whose neighbor's smoke enters his unit.
SD
Doesn't the seller have rights, too?
SD
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