HOA Rule Forbids Couple To Smoke In Their Own Home Judge Upholds Homeowners' Association Order

TheDenverChannel.com ^ | 11/16/06 | TheDenverChannel.com

[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.

[Atlas Sneezed]

You are it appears the sort of person who believes that you can actually own the beach.

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You appear to be the sort of person who has minimal grasp of economic reality, and the property rights principles real Conservatives hold dear.

[Atlas Sneezed]

It's not communist to believe that one's home is one's castle and that person should be able to smoke a stupid cigarette in his home that he owns.

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True, but no one made that argument, did they?

[Atlas Sneezed]

In SoCal, you have a hard time finding a neighborhood newer than 20 years old that DOESN"T have an HOA involved in some way

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And why do you suppose that is?

[Atlas Sneezed]

You are incoherent.

[TAdams8591]

"It is a superior achievement to work and earn a living, get promoted, get raises, invest wisely and buy a big house."

Right there. And I don't consider it a "superior ahievement." I consider it good fortune. Though many people may have achieved their goal through a combination of hard work and good fortune, many can also add "cheating" to the list. If you want to learn the tactics of the Democrats, for the most part, one need look no farther than the work place.

[Atlas Sneezed]

I assume you have no problem with that?

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Racist restrictions, like certain other modern ones (like satelite dish prohibitions) are void by law.

However, if some moron developer wants to create a racist development and lose a bundle, I think we'd be better off letting him, as an example to others, instead of perpetuating the leftist myth that we'd all be the KKK if not for goverment regulation.

[Atlas Sneezed]

I honestly suspect that those who have an emotional knee jerk reaction to HOAs have issues with the wealth and quality of living that they represent.

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No, you're wrong. I suspect they have issues with Elitists who believe a person's value is in direct proportion to the size of his house, or price of his car, or the size of his boat, or the amount of control he can have over other people's lives.

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Same thing. Thanks for proving my point.

[SheLion]

Wow -It'll take hours to catch up on this one

OMG! I know it!!!!!!!!!!!!

[TAdams8591]

" It is not insensitive to know what you have and to try to protect it. And HOA's do that. "

I got along just fine in my own home without an HOA, thank you very much. I would NEVER buy a property that had anything to do with an HOA.

[MarkL]

Coming up next: perfume. You will not be able to wear it in public, then it will be forbidden in your own home.

Well, there are some times though... The other day at work, I was in the elevator, and in cruises this woman, and nearly choked everyone in the elevator! I swear, she must have put her perfume on with a crop duster!

Mark

[MarkL]

What about kids? Listening to them cry or scream could be considered a nuisance by singles. Are they going to have to keep them on the curb?

Nope, just invest in a few of these

These, alone with a few rolls of duct tape, some bubble wrap, and velcro are all you need for taking care of little kids... At least that's what I think... None of my friends have ever asked me to babysit for them.

Mark

[MarkL]

Fair enough. However, it wouldn't have immediately occurred to many people that this particular property right had also been ceded - or that a court wouldn't overturn this rule.

I was just thinking... As smokers, they can claim that they're addicted, which I don't think that anyone could dispute... As addicts, maybe they're covered under the ADA (I had once heard that alcoholics, who are also "addicts" are covered in some ways), and could use the ADA laws to vacate both the amended bylaw and the court ruling.

Mark

[Old_Mil]

"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."

This actually is a legitimate problem. I'm currently renting a townhouse that isn't a free standing home (it shares two walls in common with the units neighboring it). Recently, someone new moved in next door and when they smoke, you can smell it in my (finished) basement. I've looked to see if I can identify where it is coming from, but haven't yet been able to identify a location.

[Sunnyflorida]

"
No, you're wrong. I suspect they have issues with Elitists who believe a person's value is in direct proportion to the size of his house, or price of his car, or the size of his boat, or the amount of control he can have over other people's lives. "

Works both ways. There are a lot of people on this board that think people that make money and have things are either lucky or cheats. I personnally know lots of very rich people and nearly all work their a$$es off.

As far as smoking, I think 1) people have the right to organize, follow due process and then regulate it any way they choose or can figure out. 2) people that smoke typically have a horrible chemical addiction that makes them irrational defending the addiction. The feel under personal assault because the thing they cannot live without is being challenged. It has to be very scary. We should not argue with them but pray they can overcome their addiction.

[MarkL]

It's not often that I go out to my car and sniff the bumper. How could smoke possibly invade the inside of a car that is not running and the ventilation system is off. Your car must surely leak when it rains then. It is your imagination.

I don't suppose you've considered that sometimes when you park in a home's garage, you leave the windows open? I know that in nice weather, it's not something that I've ever thought about. If the windows are open and someone goes into the garage and smokes, the upholstery will pick up the smoke.

Mark

[Recovering_Democrat]

This is a thorny issue. Normally, I'm one to say that if you join an organization, like an HOA, you agree to abide by the rules thereof. However, for any organization, even an HOA, to regulate private (legal) behavior within the confines of one's own home...I think that is absurd.

A sticky wicket, as they say.

Of course, when one rents a hotel room, one knows in advance of the non-smoking provisions. This is not the case here.

[Eric Blair 2084]

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.
_____________________________________________________

We used to live in a townhouse governed by a Homeowners Association. It was like living in a left wing hippie commune. They regulated your Christmas displays, your garden. I couldn't put up a satellite dish of course. They went through the garbage and handed out warnings and fines if you failed to recycle your newspaper and cans. A little island of socialism surrounded by a sea of freedom outside the gates.

We own are own house now. Private property is beautiful.

[NathanR]

In other words it would take 75% approval. Smokers get nasty when their habit is threatened, as is apparent on this thread. That might be enough to push the fence sitters over to the other camp.

[Gaffer]

Well, I suppose you could leave the windows open. Open to the night critters (cats, dogs, spiders, bugs, vermin,...all the possible critters that could mosey around the garage at night). I've learned my lesson on that one and never leave the windows down in the garage......but, if YOU do, and someone smoked in there, then yes, it could be smelled in the car.

[cajungirl]

Good fortune surely plays a part for many.

But hard work, wise decisions, good decisions {i.e. reading your HOA rules before you buy} are not good fortune for the most part.

Most people do well by blood and sweat and not good fortune.