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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: CindyDawg
Maybe they need to look at the structure of the building. Either way, if it was allowed when they moved in , they shouldn't have to stop IMO.

I totally agree with both your points, dear CindyDawg!

No smells permeate the mandatory firewall between our townhouses. I can barely hear my neighbor run his bath at 5:45 every morning, and presumably he can hear a trace of my nightowl television viewing. As for smells, the vegetarians in our townhome neighborhood better not start in about the slabs of meat grilling on the numerous side-by-side decks!

41 posted on 11/17/2006 10:58:30 AM PST by Albion Wilde (...where the Spirit of the Lord is, there is freedom. -2 Cor 3:17)
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To: Petronski
HOAs are inherent compromises of personal liberty, and are to be avoided at all costs.


They are also inherent enhancers of property value, and are to be considered as wise economic choices.
42 posted on 11/17/2006 10:58:36 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: wideawake

Of course you missed the part where the bylaws were amended last year, 5 years after they had purchased the town home.

Funny that you berate them for not reading the fine print, you didn't even bother to read the entire article with comprehension before spouting off.


43 posted on 11/17/2006 10:59:07 AM PST by dmz
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To: TheKidster

I did the same thing. I paid an attorney specifically to go over the agreements.


44 posted on 11/17/2006 10:59:14 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: TheKidster
This is a tough one. It does seem ridiculous to limit what they do in their own home. However, this suggests the problem is real:

One tenant spent thousands of dollars trying to minimize the odor.

Unfortunately I'd probably rule on the side of the other tenants, because bottom line, their property is being damaged by another tenant.

"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.

Well, there is always the option of foregoing the cigarette or taking a drive.

I wonder, why doesn't this 'news' channel use a spell-checker?

I wonder, are these Suave's related to Ricco?

45 posted on 11/17/2006 10:59:22 AM PST by Diddle E. Squat (Pence for MinL; Giuliani-Watts, Giuliani-Sanford, Giuliani-Pawlenty, or Giuliani-Perdue in '08)
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To: TheKidster

This is a tricky one. It sounds like the units have walls in common, which can be problematic for lots of reasons.


46 posted on 11/17/2006 10:59:34 AM PST by Disambiguator (;^))
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To: Alouette

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.


47 posted on 11/17/2006 10:59:38 AM PST by Gaffer
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To: ridesthemiles

I couldn't understand how it was expected to work: If they legalized the MJ and passed the laws to stop smoking everywhere, then how was the MJ supposed to be used?
Can anyone explain this??



It would mean that you could not subject others in certain public places to your smoke, but you were free to do so in many other piblic places and your own preoperty without being a criminal.

Duh.


48 posted on 11/17/2006 11:00:10 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: Beelzebubba

It would be interesting for them to stop smoking while all this was going on and see if there were still complaints of smelling it, while they weren't. Yeah, if you smoke I can usually smell it in your house or your car and sometimes on your hair or your clothes. In another apartment though...Unless something is wrong , that is pushing it IMO.


49 posted on 11/17/2006 11:00:11 AM PST by CindyDawg
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To: RacerF150

Okay, I see a strategy and tactics coming together here. Passive resistance. First, the constantly simmering cabbage and curry (when cabbage and curry are outlawed, only .....), then, a vacation with the fish supply accidently left out of the frige. An endlessly looping tape with a crying baby. This would keep them busy updating their HOA rules.


50 posted on 11/17/2006 11:00:13 AM PST by 3AngelaD
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To: dmz
Funny that you berate them for not reading the fine print, you didn't even bother to read the entire article with comprehension before spouting off.

I was well aware of the timing of the bylaw amendment, as my responses to posters less silly than you demonstrate.

51 posted on 11/17/2006 11:00:28 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: CindyDawg

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?



Only if the rules they willing bought into allow such a restriction. There are many places that limit children.


52 posted on 11/17/2006 11:01:08 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: Disambiguator

Possible, but were there complaints of adjoining fart manefestation, cooking odor manefestation, pot smoke, whatever? No.


53 posted on 11/17/2006 11:01:10 AM PST by Gaffer
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To: Beelzebubba

There are places in San Francisco with this rule.


54 posted on 11/17/2006 11:01:23 AM PST by 3AngelaD
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To: Petronski
On the one hand this is the craziest thing I have heard yet, but then came this little gem: 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

You want out or not? Either countersue or sell. If the market not being right vs. your personal rights is a tough choice then I have no pity for you. I owned a HOA condo, and it wasn't a bad deal overall. A glorified apartment but it was better than renting. I would have sold it in a minute of they had decided to ban smoking. Heck it might have even increased the value to certain people. Time for a cigarette

55 posted on 11/17/2006 11:01:57 AM PST by Ouderkirk (America won't win another war until the 1960s flower children are pushing up petunias.)
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To: 3AngelaD

No, you have to couple the noise with a law somehow....for instance, the protection for disabilities act, whirring respirator, colostomy bags, whatever....


56 posted on 11/17/2006 11:02:49 AM PST by Gaffer
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To: TheKidster
This is an interesting ruling, it boils my blood but I'm interested in hearing how others feel about this ruling against personal freedom and property rights in favor of "the common good".

The skids are greased for the slippery slope of constituional rights.

57 posted on 11/17/2006 11:02:59 AM PST by x_plus_one (Franklin Graham: "Allah is not the God of Moses. Allah had no son")
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Nobody pointed a gun at their heads and forced them to live there. Don't like the HOA rules? Move.


58 posted on 11/17/2006 11:03:09 AM PST by s_asher
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To: Albion Wilde

As for smells, the vegetarians in our townhome neighborhood better not start in about the slabs of meat grilling on the numerous side-by-side decks!""

Don't give them any ideas!!!


59 posted on 11/17/2006 11:03:11 AM PST by ridesthemiles
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To: Beelzebubba

If you have children and have invested in your home and the majority decides to limit them, you would pack up and move, peacefully?


60 posted on 11/17/2006 11:03:22 AM PST by CindyDawg
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