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.
Simply put, the courts are outta control!!
When you share walls and live like sardines...you have to respect the rights of the majority.
Don't like it? Move out!
That is my #1 criteria as well for buying a home, and I feel exactly as you do, it is completely antiAmerican!
so they need to sue the builder for building a town house so poorly that mere smoke smell can pass through.
There IS case law for nuisance smells.
Seems to me that they needed to mitigate their smoking somehow so it would not affect the neighbors in the attached townhouse.
This is a neighbor scenario, not a smoking scenario.
Actually, when I have lived in a multiunit building, I assumed that I would have to put up with a certain amount of my neighbour's habits impinging on my space, and vice versa. Within reason, of course. So if the hallways smelled like cabbage, or fish sauce, or curry, or whatever, too bad. If a little sound seeped in from the unit next door or above, so what? Of course, I lived in a crappy old wood-frame apartment building which still didn't have any problem with odours seeping directly from one unit into another.
True.
Also, as D. pointed out, units with adjoining walls can indeed be a problem. If someone was blasting some AC/DC at 3am, and I went over to complain, I wouldn't be impressed with a response along the lines of, "I am performing a legal act inside the confines of my own home. You have no say in the matter." I don't know if the smoke or the smell would infiltrate other units like noise would, of course. But maybe it does.
Seems to me that if the US Supreme Court say it is OK for homosexual acts to be private in one's bedroom, then this couple ought to "come out", announce that they are "gay" and then smoke away.
My mother-in-law bought a second floor condo and someone moved into the first floor who smokes heavily, and now her condo reeks of smoke because it comes through the air vents from the first floor.
It's really a problem of a poorly designed building (IMHO), but she's basically stuck with the smell or she would have to sell to move out. I'm generally against smoking bans, but when it gets to the point of ruining someone else's home, I might be OK with drawing a line.
All they have to do is run for the board, have some like minded people and change the rules.
The neighbors don't care if these people smoke; they just don't want to smell the smoke, and apparently they do. It would be the same issue if a neighbor was creating a noxious odor outside, or cooking strong-smelling food all the time. The same fight would ensue.
You never heard of hash brownies? ;-)
I could see a HOA restricting to future buyers but there needs to be a grandfather clause for the others. Did you know that if a nursing home goes smoke free that still must provide smoke areas for the smokers already there?
I just read a few days ago about some city council banning all smoking withing the city limits except for single family detached homes. Presumably that means all apartments and hotels/motels. It won't be long until some city or state somewhere bans smoking in your own home if a neighbor objects.
Here's the truth. Smokers are the only minority group on earth that it's OK to discriminate against. People can keep shoving them further and further to the margins and feel self righteous about it. In fact society encourages these modern day Puritans. Being an anti smoking zealot is just about the only area left where folks can exercise their "moral superiority" and get away with it.
Those things have no place in America. They're full of little Napoleon's and snotty busybodies.
Oh really?
How do you feel about applying the same outcome against a neighbor who habitually uses too much garlic while cooking?
Or prepares oriental dishes which I have experienced the smell of which literally makes other people sick?
Here, in California, I have seen a bad societal situation get infinitely worse: the state legislature with no credible scientific basis whatsoever, has decreed that "second hand" smoke is toxic.
This allows TV commercials to start showing making that exact statement, These commercials, of course, are prepared by the huge parasitic industries created to use the "big tobacco" hundreds of millions$.
Beats getting a real job!
George Orwell did. The smell of boiled cabbage is mentioned several times throughout 1984.
Until the Gestapo HOA changes it's ruling, I'd keep a pot of garlic boiling on the stove 24/7.
If someone was blasting some AC/DC at 3am, and I went over to complain, I wouldn't be impressed with a response along the lines of, "I am performing a legal act inside the confines of my own home.
^^ But that IS illegal
It's not as far-fetched as you might think. I live in a second-floor condo unit. The people in the unit directly below me are smokers. In one room of my unit (formerly my bedroom), the smell of smoke is very noticeable at times. Visitors have commented on it as well, and my clothes picked up the odor, too. So what I did was swap out my bedroom and office room. It's only the one room where the smoke odor was really noticeable.
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