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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: Xenalyte; y'all

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.


701 posted on 11/20/2006 10:06:09 AM PST by tpaine
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To: cajungirl
From the relevant part of the wikipedia article on Homeowner associations:
Homeowners associations collect fees, fines, and other assessments from homeowners, maintain the common areas of the development, and enforce the association's governing documents. These may include detailed rules regarding construction and maintenance of individual homes. The common areas maintained and governed may include landscaping, common buildings (e.g., clubhouses) and recreational facilities such as swimming pools), common walls in attached housing developments, and infrastructure such as streets, mailboxes, sidewalks, and parking lots.

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.

702 posted on 11/20/2006 10:07:53 AM PST by NathanR (Après moi, le deluge.)
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To: tpaine
You are impossible. That is a good thing. Taking the moral certainty is why we beat you. Will keep happening. You argue like a dem.

"Wrong.. I can say that, just as Marshall said that in Marbury. -- 'Laws' repugnant to our Constitution are null & void from the minute they are enacted. -- Are you sure you got a "A" in constitutional law?"

Unless you are a member of SCOTUS. Your opinion of what is constitutional and what is not is just that - an opinion. I saw laws banning smoking in the work place are Constitutional. You may say otherwise but I see no the Court agreeing with me. You have the right to challenge whoever you choose. What has Marshall's antecedents said about my right to enact FL Amendment Six? Nothing so it MUST be Constitutional using your logic.

"Unenumerated rights are protected in the Constitutions 9th.. " But smoking is not a right enumerated or not...See above. You may declare a moral right to smoke but you have no specific evidence you have a Constitutional Right.

"Are you saying the referendum process in several states is seditious?
What gives you that idea? -- Read the above for 'what I said'; defending unbridled majority rule is akin to sedition, imo. ..

State referendums are 'bridled' by both Article VI and the 14th Amendment, are they not?

I see you use the term 'bridled". Then use the US Constitution as the governor. I agree.

Fine, we agree that State referendums are 'bridled' by both Article VI and the 14th Amendment.

Laws restricting smoking are either "bridled" of"unbridled". If you feel they are implemented "unbridled" then take it to court. You can challenge the process or the outcome, or both. But until you win in court or the sphere of public opinion (i.e. ballot) box you cannot say smoking laws are illegal.

Wrong.. I can say that, just as Marshall said that in Marbury. -- 'Laws' repugnant to our Constitution are null & void from the minute they are enacted. -- Are you sure you got a "A" in constitutional law?

You may not like them, and I support your position to challenge them, but it is a political choice. The concept that smoke is an unbridgeable right is bunk.
Smoking is not protected in the Constitution.

Unenumerated rights are protected in the Constitutions 9th.. You're wrong again; - grade "F".

Are you saying a political movement that would champion an amendment to the US Constitution to implement a national referendum would be sedition?

If that proposed amendment 'championed' ignoring our individual rights to life, liberty or property, -- you better believe it would be seditious.. - Can you agree?

Nope, if it was political.

You proposed a political amendment, not me. Now you say "if"? -- How weird.

I say the rights we have come from good sense and the Constitution.

"I say our rights are self evident & inalienable. -- They do not "come from" the constitution. - Another "F". Bizarre and egotistical. You do not have the right to say what my rights are.

Are you saying the referendum process in several states is seditious?
What gives you that idea? -- Read the above for 'what I said'; defending unbridled majority rule is akin to sedition, imo. ..

State referendums are 'bridled' by both Article VI and the 14th Amendment, are they not?

I see you use the term 'bridled". Then use the US Constitution as the governor. I agree.

Fine, we agree that State referendums are 'bridled' by both Article VI and the 14th Amendment.

Laws restricting smoking are either "bridled" of"unbridled". If you feel they are implemented "unbridled" then take it to court. You can challenge the process or the outcome, or both. But until you win in court or the sphere of public opinion (i.e. ballot) box you cannot say smoking laws are illegal.

Wrong.. I can say that, just as Marshall said that in Marbury. -- 'Laws' repugnant to our Constitution are null & void from the minute they are enacted. -- Are you sure you got a "A" in constitutional law?

You may not like them, and I support your position to challenge them, but it is a political choice. The concept that smoke is an unbridgeable right is bunk.
Smoking is not protected in the Constitution.

Unenumerated rights are protected in the Constitutions 9th.. You're wrong again; - grade "F".

Are you saying a political movement that would champion an amendment to the US Constitution to implement a national referendum would be sedition?

If that proposed amendment 'championed' ignoring our individual rights to life, liberty or property, -- you better believe it would be seditious.. - Can you agree?

Nope, if it was political.

You proposed a political amendment, not me. Now you say "if"? -- How weird.

I say the rights we have come from good sense and the Constitution.

I say our rights are self evident & inalienable. -- They do not "come from" the constitution. - Another "F".

" in good part due to lawyers just like you,"

Another crazy FReeplusion. You have to stop that. Who said I was a lawyer? HAH LOL

In any case when it comes to declaring a constitutional right to smoke or invalidating the initiative process you loose. Your attitude costs you votes. You need all you can get.
703 posted on 11/20/2006 10:08:25 AM PST by Sunnyflorida ((Elections Matter)
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To: cajungirl; LexBaird
There we have the ~real~ issue.
--- At what point will a majority decide it has the power to prohibit most ANYdamnthing, just because 'they don't like it'..
Are there constitutional limits on majority rules? -- A rapidly growing faction on FR claims not.

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.

704 posted on 11/20/2006 10:25:39 AM PST by tpaine
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To: Jim Noble

Riiight.


705 posted on 11/20/2006 10:28:27 AM PST by saganite (Billions and billions and billions-------and that's just the NASA budget!)
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To: Sunnyflorida

Your jumbled mess of a 'reply' speaks for itself. -- Thanks for your imput.


706 posted on 11/20/2006 10:37:48 AM PST by tpaine
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To: tpaine
Indeed it is. Can a valid contract infringe upon an inalienable right? [could the Association ban cooking cabbage? Or worse yet gun ownership?]

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.

707 posted on 11/20/2006 11:25:36 AM PST by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: LexBaird

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.


708 posted on 11/20/2006 12:38:00 PM PST by tpaine
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To: LexBaird; y'all

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 --".




709 posted on 11/20/2006 12:57:31 PM PST by tpaine
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To: tpaine
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. 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?

710 posted on 11/20/2006 1:17:24 PM PST by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: tpaine
"-- 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.

711 posted on 11/20/2006 1:23:05 PM PST by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: LexBaird
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.

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?

712 posted on 11/20/2006 2:02:34 PM PST by tpaine
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To: tpaine
I don't see this so much as the right to do what you please in your own space. It is more about what leaks out of your space that affects others. The cooking odors that make others puke, the loud music at night that keeps others awake, the bullets from your gun that come through the wall and the smoke that leaks into someone else's private living space.

Those things are problems that the offending person needs to stop.
713 posted on 11/20/2006 2:49:57 PM PST by Ditter
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To: tpaine
You admitted just above that the contract in question was "-- subject to constant revision without recourse --". It can't be both. -- Which is it?

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.

714 posted on 11/20/2006 3:04:58 PM PST by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: jammer

Thanks for reading them and responding.


715 posted on 11/20/2006 4:28:16 PM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: Howlin
Why on earth would I ever need anything you have?

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.

716 posted on 11/20/2006 5:11:45 PM PST by elkfersupper
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To: wideawake
Someone may have made this point, but I can't look through 675 posts to see.

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.

717 posted on 11/20/2006 5:57:29 PM PST by jammer
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To: jammer

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.


718 posted on 11/20/2006 6:24:02 PM PST by cajungirl (no)
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To: elkfersupper; Howlin

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.


719 posted on 11/20/2006 6:31:47 PM PST by Ditter
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To: jammer
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.

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?

720 posted on 11/20/2006 6:32:01 PM PST by ladyjane
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