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.
Oh, the anti-smoking rule was certainly after the fact.
What wasn't after the fact was the HOA agreement, which almost certainly spelled out that the bylaws of the HOA could be amended at any time and that the new bylaws could be imposed on all residents by simple majority vote.
You have an excellent point. I specifically looked in neighborhoods with no sort of HOA or convenant when I bought my first house a number of years ago so that nobody could tell me what I can or can't (legally) do with my property.
They should just continue to smoke in their unit and make sure they are never caught red-handed, since I doubt a search warrant would ever be issued for something so petty. They could also keep a pot of boiled cabbage constantly going on the stove. That has a unique smell the neighbors would enjoy. By the way, how do you prove "smell" in a court of law? And why isn't the manufacturer of the dwelling responsible for cross-ventilation problems? And why are the other residents living in joined housing if the private acts of their neighbors are so offensive?
If it wasn't in the rules when they bought into the HOA, they should have been grandfathered in because those were not the terms they agreed to when they moved in..
Methinks the Courts need to move to cut the teeth out of HOAs...
I can't wear perfume now. My boss is allergic to it and he can still smell it on me from several days before. I can only wear it if he's going to be out of the office for awhile. When it's a real allergy, then it's legit.
Coming up next: perfume. You will not be able to wear it in public, then it will be forbidden in your own home.
Sometimes, for particular zealots, the very fact that someone somewhere is doing something of which you don't approve, reinforces perceptions of that act's impact on you. TRANSLATION? Morelike the 'affected' tenant's protestations are false - equivalent to the old people in Florida lying about the ' ooh so confusing' ballots, etc. Regardless, the affected tenants (the smokers) should sell their unit and move somewhere else that assholes don't live.
If the non-smokers outnumber the smokers, they can get away with that. Fortunately, our HOA is just alive enough to avoid seizure by the management corporation. They haven't had a quorum for a meeting in seven or eight years. I've heard there's someone in the back of the development keeping chickens (WAY against the rules) but haven't taken the trouble to check it out, because I DON'T CARE. Every now and then some gung-ho guy gets on the Board, but he's always beaten down in a couple of months.
Wasn't it James Joyce who had cabbage cooking in his literature as a symbol of the poorer class?
My husband smokes in the garage and now my car stinks.
The terms they agreed to when they moved in were that the HOA bylaws were subject to amendment.
They have no legal grounds to claim exemption.
I think the HOA has the right to ammend the bylaws, but I would think the couple would have been "grandfathered". This is hideous in that it basically forces the couple to sell their place and move.
Most people would gladly trade their freedom for the right to manage their neighbor.
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