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.
"By the way, how do you prove "smell" in a court of law?"
You reward the HOA with the "sound" of jingling money.
Sorry, but there is no legal act conducted inside one's dwelling that can even qualify as rude. What's rude is someone telling you to change your private behavior because in their OPINION, cigarette smoke stinks. Tough squat! Let them sue the manufacturer of the building.
"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?"
A while back there were several 'adults only' apartment communities in Atlanta. If a tenant had kids they were asked to move. The lawyers smelled blood and now there are no more adults only communities in Atlanta.
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.
Under which law?
HOW is a buyer to know????
Your comment(s) overlook the fact that HOA board membership changes over time. May have some good folks one year, total idiot nannies the next.
I've experienced that; have the T-shirt.
I wouldn't even think of buying into an HOA-admined development.
The skids are greased for the slippery slope of constituional rights.
Huh. This sounds like a design problem to me. I have lived in several apartments. I have heard tvs, dogs, fights, babies crying....but never smelled smoke. Same with hotels. I can smell smoke in a room but not in a hall or non smoking room. What are they doing differently?
maybe they should commence a regime of loud, energetic sex, early and often.
let's see the condo nazi's restrict THAT!
I'm the last person who could answer that correctly.
If you have children and have invested in your home and the majority decides to limit them, you would pack up and move, peacefully?
towns, cities etc. have noise ordinances. that is all I meant.
You can call the police on noisy late night neighbors. Soon it looks like you will be able to call them because a neighbor is smoking... :)
Interesting observation.
More homeowner's associations board of directors need to be replaced on a more regular basis.
Your statement is intriguing. Does your "majority vote" refer to the board of directors? or the homeowners?
If both the federal government and the states are limited to make arbitrary laws by majority vote, why should a homeowner association be allowed to?
e.g. No blonde persons shall be allowed to reside in any unit...
If the majority vote so decrees, is it legal?
Remember, it many instances, it has been allowed simply to make the statement, "it is for the good of the majority", and off they go...
We can't usually get through a day without being offended by something. If this is America, at least the one I always knew, people have to have someplace to be who they are. To legislate what people do inside their own home, that isn't criminal, is a gross invasion of privacy. We have bigger things to worry about than picking on each other. You get this crap started and there is no end to it.
How do you change oil or fix it then? Around my neighborhood, which is causally nice, RVs and boats are put beside the house on their special driveway:')
Well put, but you forgot Christians. It's still pretty hip to bash Christians, i.e. Rosie O'Donnell's comparison of radical islam in the Mid East to "radical christianity" in the US.
What the hell are you talking about? I'm BUYING the property, it is mine, WTF do you mean? They didn't have someone hold a gun on their heads to sign the purchase contract.
"...the rights of a community trump the rights of individual residents..."
Sounds like a quote from Marx or Lenin. Communism.
this decision could have been made entirely without the HOA, cigarette smoke is easily defined as a nusiance/and or trespass under common law, and the neighbors could easily have sought injunction and damages without any rules.
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