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.
Of course, you can decide not to part of a HOA. Nobody is pointing a gun at your head forcing you to sign to buy and sign the covenant!!!! If the covenant gives the HOA the power to subsequently change the rules, then the purchaser doesn't have a right to whine later. He should have read it first. It is just like any other contract.
I agree to a point. I don't think they should have the power to evict and take people's houses which some do.
All in all I think people who buy in a HOA type community get what they asked for. They are useful in keeping property values up which is a good thing for sure but some abuse thier power for personal vandetta's.
I think after reading a bunch of posts about this that since they owned the apt. before the HOA took over they should have either been grandfathered in or not signed the deal without that type of grandfather clause.
If you move to a house cause there is a school in the neighborhood, and the next year the school board decides to close that school and consolidate the students in another building, do you have a right to sue someone?
If you voluntarily move into a house you are subject to the local gov'ts whose jurisdiction you are in.
An HOA is just another example. An HOA isn't a fixed set of rules, it is a gov't.
Rules can be added and subtracted according to the HOA's bylaws, etc.
SD
Not after he or she has sold the property.
Cigarettes cause mass hysteria.
How about before?
SD
These homes were very, very close. I might add, that I don't like living next door to drinkers who fight and disrupt the harmony of my home. It goes both ways, the non smoker or non drinker can move to another location, or the drinker and smoker can move. Either way, neither substance is illegal in this country. The Government makes a lot of off both, otherwise neither one would be legal. I wonder what people would do if pot becomes legal as people are pushing for? Also are you saying that the smoke travels to the next unit? It has to have a way to get through the walls. Ought to get a better builder.
Nobody is forced to buy in a condo with a HOA
There is a national trend to convert apartment complexes into Condo complexes. I bet this is the case here. In that instance it's hard for someone to come up with the down payment cash and sometimes it's hard to find another apartment in town that is affordable when your complex is being converted. I have a friend who went thru this recently. Luckily after months of searching she found another apt. She didn't want to pay hundreds of thousands of dollars for her crappy apartment unit.
In cases like this, with apts. typically being less soundly constructed than condos and town homes, I think there needs to be an option to opt out if you are already a resident because in this sort of case they are pretty much forced.
I got a phone call today from some organization claiming to be a "children's advocacy organization."
I've never hung up a phone on anyone so fast in my life - hope I damaged their eardrum.
They have the right to be paid with a check that doesn't bounce. After that, no, it is no longer thier property. Renting is a different thing altogether.
But not apartments in the same building? Then your testimony isn't really relevant.
Also are you saying that the smoke travels to the next unit? It has to have a way to get through the walls. Ought to get a better builder.
Sure. In the meantime, doesn't the polluter have the responsibilty to keep his fumes contained? Isn't personal responsibility something we praise?
SD
Going hand in hand with the idea that it takes a binding legal judgement to solve personal disputes is the attitude among many people that unless a legal judgement is forced on them they are in the right and won't make a single concession to anyone.
Common courtesy takes two.
If you move to a house cause there is a school in the neighborhood, and the next year the school board decides to close that school and consolidate the students in another building, do you have a right to sue someone?
That happened recently in a FL community. They did sue and won the right to send thier kids to a school of thier choice.
They have the right to be paid with a check that doesn't bounce. After that, no, it is no longer thier property.
They have no right to determine to whom they wish to sell their property?
Isn't it within the property rights of the seller (the person who actually owns the property) to sell to whomever he wishes?
SD
Nobody is forced to buy in a condo with a HOA
In cases like this, with apts. typically being less soundly constructed than condos and town homes, I think there needs to be an option to opt out if you are already a resident because in this sort of case they are pretty much forced.
So the fact that HOAs are better deals in your mind somehow equates to being "forced" to buy into one is interesting.
That is precisely my point.
I danced around it a bit, I'm glad you got it. :-)
i sure hope so.that stuff makes me sick.
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