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.
There are two solutions to this problem. Both involve the parties to the problem doing something themselves, instead of suing.
A would be for the complaining non-smokers to move to housing that doesn't share structural elements with other housing. It's a lot harder for your neighbor to blow smoke into your house if it's 15 feet away from his.
B would be for the smokers either to quit smoking, or to move to stand-alone housing.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
A variation on "A" & "B". -- Seeing the condo Association changed the rules, they should be liable for buying out either party and restoring the peace. The association could then re-sell to new owners who accepted the new rules.
Often, a homeowners association collects special assessments from all its members in addition to set fees. Assessments can be made to cover legal expenses for a judgement against the homeowners association, to repair damage from a natural disaster, or to make improvements.
In some U.S. states, California or Texas for instance, a homeowners association can foreclose a member's house without any judicial procedure in order to collect a fine. Other states, like Florida, require a judicial hearing.
Not an issue here, tpaine.
So you claim. The smoking condo owners claim they ceded no 'power to prohibit smoking', -- to the Association.
The issue here is a signed contractual agreement between parties.
Indeed it is. Can a valid contract infringe upon an inalienable right? [could the Association ban cooking cabbage? Or worse yet gun ownership?]
Exactly the sort of thing libertarians espouse in lieu of centralized governmental controls.
Yep. bashing libertarians is yet another 'community issue'.
If you contractually give up some property rights to an HOA in return for some perceived benefit, that is your choice. But don't weep and moan when the other party enforces the contract to your cost.
I believe in fighting for my rights to cook cabbage, or smoke, or to own a gun. I don't cry about it, like some here.
Riiight.
Your jumbled mess of a 'reply' speaks for itself. -- Thanks for your imput.
It is not the contract "infringing". It is each party voluntarily agreeing to certain constraints. Either party can break the contract at will, but will incur the penalties agreed upon for breach. The smokers are under no obligation to remain living in the HOA. They can pack up their ciggies, cabbage and guns and sell out any time.
If they don't like the contractual constraints, they should not have signed them. It is precisely for this type of reason that I will not be in an HOA: that the terms of the contract are not set, but subject to constant revision without recourse to removing your property from the HOA. To me, that is buying a pig in a poke.
Yep. bashing libertarians is yet another 'community issue'.
What bashing? I'm saying that a valid contract between parties that is not fraudulent or coerced is a core libertarian principle. It isn't up to me or John Q. Public to get the smokers out of a bad deal.
Can a valid contract infringe upon an inalienable right? [could the Association ban cooking cabbage? Or worse yet gun ownership?]
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Lex:
It is not the contract "infringing". It is each party voluntarily agreeing to certain constraints.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The smokers did not agree that the Association had the power to prohibit smoking.
ASU OGC: Briefing Papers | Contracting Basics
Address:http://www.asu.edu/counsel/brief/contractbasics.html
Is the contract valid, void, voidable or unenforceable?
"-- 4. An unenforceable contract is generally a valid contract but is not enforced because of public policy or law. --"
In the case at hand, a smoking ban can not enforced because of public policy or law stating that people shall not be deprived of life, liberty or property without due process of law.
An Association prohibition on smoking infringes on the owners property rights, a right upon which they never 'voluntarily agreed to constraints'. - Due process was also violated.
If the terms of a contract are not set, but subject to constant revision without recourse, the contract is invalid, in my [constitutional contracting] book.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Contracting Basics
Address:http://www.asu.edu/counsel/brief/contractbasics.html
F. Legality of the contract matter--the subject of the contract must be legally permissible and not against public policy.
II. Barriers to Formation of a Contract
A. Mutual mistake or ambiguity with respect to material terms.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"-- subject to constant revision without recourse --" -equals- "-- ambiguity with respect to material terms --".
The HOA claims it did, and gave due process both in the amending of the HOA covenants, and in the notice to the smokers. IOW, the smokers had an opportunity to have their say when the covenants were amended, and given notice they were in violation of the amended contract.
It then is a civil case for the contract lawyers to decide which argument is correct.
But I have a question for you: how far do your property rights extend? I will stipulate that if the smokers can guarantee their voluntary activity will be undetectable to a reasonable person outside of the bounds of their property, there should be no question. The question arises at the boundary between your property and mine. Can you do things on your property that make the use and enjoyment of my property difficult or impossible? Can I pollute a stream that crosses my property, and let the effluvia wash on to yours? May you site an open cesspit upwind of my house? May you burn noxious weeds in your backyard, right outside of my house's intake vent?
No it doesn't. Example: an employment contract, wherein wages may be increased or renegotiated without renegotiating the entire contract. If both parties have a say in the revision, under the terms of the contract, it is not in violation of your F.II.A.
Contracting Basics
Address:http://www.asu.edu/counsel/brief/contractbasics.html
F. Legality of the contract matter--the subject of the contract must be legally permissible and not against public policy.
II. Barriers to Formation of a Contract
A. Mutual mistake or ambiguity with respect to material terms.
The smokers did not agree that the Association had the power to prohibit smoking.
The HOA claims it did, and gave due process both in the amending of the HOA covenants, and in the notice to the smokers.
You admitted just above that the contract in question was "-- subject to constant revision without recourse --". It can't be both. -- Which is it?
IOW, the smokers had an opportunity to have their say when the covenants were amended, and given notice they were in violation of the amended contract.
In other words they were outvoted by a majority, -- which stripped them of a property right.
It then is a civil case for the contract lawyers to decide which argument is correct.
No, it remains a constitutional issue. Can 'majority rule' infringe on inalienable rights?
But I have a question for you: how far do your property rights extend? I will stipulate that if the smokers can guarantee their voluntary activity will be undetectable to a reasonable person outside of the bounds of their property, there should be no question.
Fine.. That would resolve my constitutional objections. It's all a question of 'reasonable persons & reasonable rules'. The smell of cooking cabbage & tobacco smoke can be objectionable, but reasonable rules can be made.
Fiat prohibitions are not reasonable rules.
The question arises at the boundary between your property and mine. Can you do things on your property that make the use and enjoyment of my property difficult or impossible? Can I pollute a stream that crosses my property, and let the effluvia wash on to yours? May you site an open cesspit upwind of my house? May you burn noxious weeds in your backyard, right outside of my house's intake vent?
Of course not. -- I went through this type of questioning earlier with another majority rule devotee, as you should know, and made the same answer.
"-- subject to constant revision without recourse --" ~~~equals~~~ "-- ambiguity with respect to material terms --".
No it doesn't. Example: an employment contract, wherein wages may be increased or renegotiated without renegotiating the entire contract. If both parties have a say in the revision, under the terms of the contract, it is not in violation of your F.II.A.
"-- revision without recourse --" are your words, are they not?
You take me out of context. "...without recourse to removing your property from the HOA." There are other recourses; namely, to sell out and move, or abiding by the new restrictions, or getting them repealed by the HOA. But, once in, never out, is the restriction I won't agree to.
It's rather like gaining Statehood. Once committed to the community, you can't secede. The only way out is to dissolve the HOA, or sell out your property, HOA and all.
Thanks for reading them and responding.
It has been my observation that when a cog slips in you city-dwellers' urban utopia, some or quite a few of you find your way to my place (or somewhere like it) looking for some some kind of help to get your @$$ out of whatever crack it's in.
The last time it happened to me was after a 40-inch snowfall accompanied by 60 MPH winds, followed by several days of single-digit temperatures.
The end of civilization as you know it is only 72 hours without power in subfreezing temperatures away.
Sounds like I may have described your front yard, huh?
Not exactly yet, but I'm working on it.
You did ask a question though, whose implied answer I am skeptical of. You've been at closings (or at least I have in my, hmmm, 6 houses I've purchased for personal use). Your attorney or some agent has supposedly looked at all the paperwork. I take it on faith that when they tell me it's "okay", that it is okay. Papers get keep getting shoved at you to be signed. I, at least, never would have dreamed that anyone could tell me through a covenant that I couldn't do a legal activity INSIDE my own home.
Those covenants are for keeping the front yard free from jacked up cars, etc., or even more strenuous conditions, like paint color. What will now happen is that I won't be able to live in a neighborhood with covenants, because they control much more than noise and exterior conditions. Controlling inside is much more questionable. It seems to me to be self-defeating.
I think if the smoking and smoke had been confined to the home it would not have been a problem.
You do many things in your house which could be a "nuisance". Running a business in your house is usually not allowed if it involved many cars, traffic. If you play music in your house at a deafening volume, that constitutes a nuisance. If you are iin an apartment/condo nuisances are easier than in a separate house in a neighborhood.
Appearance is one aspect of a neighborhood. The HOA in a condo association usually keeps up the outside and common areas.
Condos or apartments which have gone condo {generally old buildings} have such close living quarters that I suspect nuisance from noise, smells, pets is worse.
I just drove across your state twice in the last month. West bound on I10, eastbound on I40. I am glad I didn't need assistance because I am sure I wouldn't have gotten it from you any quicker than Howlin would.
You would take the word of a lawyer and not read through association documents? Not a good idea.
When you buy a home you go there at different hours of the day, on different days of the week. You talk with neighbors. If there is an association you talk with trustees.
You are going to spend a big percentage of your life and a big percentage of your net worth for this place. You're going to rely on some girl/guy who couldn't get into medical school to read the documents you should read?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.