Smoking on Balconies - A Dilemma for Condo Owners

By
Real Estate Agent with Windermere Real Estate - Palm Springs CalBRE# 01339266

California doesn't like smokers.

The state was the first to ban smoking on trains, planes, buses, public buildings, workplaces, restaurants and bars. Last year, California prohibited smoking in a car when a child is present and now California is reconsidering banning smoking on state beaches and in state parks.

With that thought, I move on to the subject of this post .....

The condo building I live in features large balconies off most of the units. The CC&R's (Covenants, Conditions and Restrictions) allow for barbecues provided certain safety requirements are met. However the CC&R's and R&R's (Rules & Regulations) specifically state that "Smoking is not permitted in any common area. This includes elevators, hallways, lobbies, garages, driveways and recreational areas. Smoking is however permitted on balconies and patios, with due consideration being given by the smoker to his/her neighbors".

Certain residents who are big smokers spend long periods of time of their balconies and the smoke drifts into their neighbors' units causing irritation and unwelcome smells. Despite requests for consideration of their neighbors these residents continue to smoke unabated.

The Board is now proposing a complete ban on smoking in all common areas including balconies and patios since these are Common Areas as defined by the CC&R's.

I know the next Board Meeting will have a very vocal "Owners Forum" during which time this topic will be discussed. I understand that owners are entitled to enjoy the privacy of their homes, but at what point is it reasonable to dictate what they can and cannot do in their own condos?

I am not a smoker and don't enjoy second-hand smoke either .... but I'm trying to rationalize this in my mind.

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Show All Comments
Rainmaker
122,067
Jim Valentine
RE/MAX Realty Affiliates - Gardnerville, NV

Stewart, I think people should be able to do whatever they like inside their home as long as it is legal and not intrusive to a neighbor.  If the ventillation system allows for smoke to travel then, perhaps, they might need to control smoking in the unit.  Aren't there fan ashtrays that suck in the smoke so it doesn't go all around?  It would seem a smoker would want to minimize the controversy as they engage their habit.  It is amazing how often people smoke outside their homes now, and how it smells as one approaches the front door, garage, or wherever they are inclined to spend their smoking time.  I never thought I'd see smoking banned from casinos here in Nevada, but many are going that way.  The times they are a changin.  Good luck with your HOA meeting - it will be interesting to see how things go.

Jul 20, 2009 08:21 AM #55
Anonymous
Anonymous
Anonymous

Stewart,

Just so I understand this correctly, people can BBQ whatever on their grill with all kinds of odors and smoke and the complaint is a little cigarette smoke? I think correctness has gone too far. I smoke a pipe and there's no way I'm giving that last pleasure up for anyone. Besides, what do you do after sex? Chew mints?

Jul 22, 2009 12:44 AM #56
Rainmaker
110,667
Jane Wallace
ERA Herman Group Real Estate - Denver, CO
CRS | SRES, Denver Real Estate

Stewart,

In my building the balconies/patios are limited common elements so are the parking spaces, they are not common areas. I call the balconies smoking rooms that is what people use them for, In Colorado the bars have no smoking but the patios are full even in the winter with portable heaters for the smokers. Actually I feel they should have a nice seating area at Hotels and Restaurants for smokers, I just noticed that they do at the JW Marriott in Cherry Creek.

I was just on a road trip and in the Rest Stops in IOWA Smoking was only allowed in you Car not Outside. (Iowa seems to be a head of the country in a lot of ways)

Jul 23, 2009 05:48 PM #58
Rainer
2,440
Thom Kraley
NewCastle Home Loans, LLC - Chicago, IL

Very interesting issue.  There is plenty of case law out there that supports smoking bans both inside and outside.  But be careful, you may lose your buyer to a "smoking" building down the street. 

Jul 28, 2009 01:31 AM #59
Rainmaker
619,469
Thom Abbott
MyMidtownMojo.com Thomas Ramon Realty - Atlanta, GA
Midtown Atlanta Condos For Sale

Stewart....have not looked for the updated blog, but I will post a comment here.

When we condo dwellers sign on, we hardly every REALLY read the condo docs for which we can be held accountable to for many, many things we never dreamed that someone could "rule" on.

While the balconies ARE a limited common element, I think it's going a bit far to say you can't smoke on your balcony. That said, a chain-type smoker who's smoke bothers someone else, well perhaps there is some neighborly thing that can be done to resolve the issue. Oh, wait...we are talking condo living...neighborly...same sentence...hmmmm....

Our issue lies not with the smoke, but the butts....and butts and butts....we have units on lower floors tha that have huge terraces that are littered with butts from the balconies above....people smoke and rather than use an ash tray (which is one really foul smelling thing) they pitch them over the balcony.

2 years ago we had two fires started in the tress on the building from this very thing! Can we say STUPID!

I don't like cig smoke at all, but I'd hate to be so limited as to not be able to smoke on my balcony as well.

Jul 30, 2009 01:03 PM #60
Rainer
241,202
Douglas Fischer
East Oahu Realty - Selling Honolulu, Hawaii Condos - Honolulu, HI

The laws are just as strict, if not more so, in Hawaii.  There's hardly a place that people can smoke in public.  Since I'm a non-smoker, of course, that's great.  However, my partner smokes and since smoking is not allowed in our home, it can be tough.  Perhaps it's time to quit smoking !!  ; )

Aug 25, 2009 02:06 PM #61
Anonymous
Anonymous
Bill Zimmerman

A condo legally, is not a single family home, and the individual rights of a condo owner simply do not exist as with a single family home.  If someone wants to use their property as, and have the rights of a single family home owner, I suggest they purchase a single family home.

Here's an excerpt from our CC&R’s circa 1989, Washington State) 

“11.10 Offensive Activity - No noxious or offensive activity shall be carried on in an apartment or common area, nor shall anything be done therein which may be or become an annoyance or nuisance to other owners."

Your issue has nothing to do with an individual’s right (to smoke or anything else). It has everything to do with the necessary and normal enjoyment of your property, that clearly trumps the unnecessary (offensive, annoying, or nuisance) activities of any individual. CC&R’s are to be interpreted liberally and always protect the property and the normal enjoyment of the property, rather than any individual behavior. You can’t Blair your stereo (noise pollution), you can’t shine bright lights in someone’s window (light pollution), and you can’t pollute the air that all are forced to share. All of these have been and are considered forms of trespassing.

Other than the interior airspace within the unfinished walls, ceiling and floor of your apartment legally defined as your property, all else is common area, even the dry wall itself is usually considered common area (for its sound and fire control properties), and certainly the airspace within the common or structural walls and floors which the smoke is seeping through is common area. Limited common areas are fractionally owned exactly as any other common area, with the legal distinction that that area is reserved exclusively for the use of an individual unit. You all own a fraction of the balcony or parking stall or area, or wall cavity, or floor cavity, that the smoke is coming from or is getting through, and any owner has the right to limit any activity within any unit, if it can be shown to be an annoyance or nuisance.  Any individual right to any activity within your unit ends when the effect of that activity protrudes beyond your unfinished walls, floors or ceilings. Again, these are not freestanding single family residences and can not be consider to be.

I hope my analysis helps everyone better understand the unique situation that is a Condominium Association.
 
--Bill--
 
Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association

Aug 28, 2009 03:26 AM #63
Rainer
229,855
Karen Bernetti
Staging4Smooth Transitions Connecticut Home Staging - Southington, CT

Great topic.  This is a common complaint among unit owners of the condos we manage ... I have one who complains about her neighbors who smoke outside her unit - and her husband is a smoker.  She mekes him smoke outside and do the very same thing to their neighbors.  Some people just shouldn't live in condos. 

Sep 07, 2009 10:34 PM #64
Rainer
31,150
George Wilson
Lincolnton, NC - Lincolnton, NC

Stewart, Haven't seen the update on the meeting so I'll leave an additional thought that I saw in the news today. With the rise of obesity in America, several states & Congress are planning to place a surcharge tax up to 4% on all foods that use at least 1 oz of surgar in the preparation of food products, not limited to bread, milk, microwave dishes, yogurt, jello, bacon, & other prepackaged foods and they are also looking at controlling alcoholism by charging a surcharge on all products that contain 1% alcohol/volume (most liquid medicines/cough syrups contain this). They had such great results in lowering the number of tobacco products sold that it should work on other health issues that are the result of personal habits & environmental/social issues. I figure that this would come about & since decrease of cigarette sales through taxation worked; the government is looking at other ways to ensure we all have a healthy lifestyle.

Sep 23, 2009 01:05 AM #65
Rainer
215,982
Marcia Hawken
Downing-Frye Realty, Inc. - Naples, FL
Naples Luxury Specialist

Wow, What a great discussion.  What about workers who are doing renovations?  Many of them smoke and in Florida the work has to be done in summer when owners are not here. And friends who come for dinner and are smokers.  I am a former smoker (like a lot of us) and are told they cannot smoke.  I am all for cutting back but I just don't think I want some of the condo associations to run wild!

Oct 21, 2009 05:20 AM #66
Anonymous
Anonymous
Bill Zimmerman

Regarding the comment about the Condo Association running the world...

You must remember that is your condo association is a non profit corporation. Yes you are all part owners of a corporation and have no individual rights to do anything that would reduce the use or benefit or value of someone else’s share in that corporation (in this case their apartment and common area).

The fact that you used to smoke or that many people in your area do or tolerate smoking doesn’t change this fact.

That, that is beneficial to all has to be protected as indicated in this excerpt from our CC&Rs (Washington State Circa 1989)

"By acceptance of a ...contract for sale, ...or any privileges of use or enjoyment, respecting the property or any apartment..., it is agreed that this Declaration, ...effecting a common plan for the condominium development mutually beneficial to all of the described apartments, ...are binding upon the entire property and upon each such apartment as a parcel of realty, and upon its owners..."

I don’t see anything there or anywhere in our 60+ page CC&R's that guarantees an individuals right to smoke, or another behavior not directly required for the normal use of the property.  Smoking simply is not beneficial to all, and can be argued as unnecessary.

Another excerpt relating to "Use of the apartment"
"The buildings and apartments shall be used, for single family residential purposes only, on an ownership, rental or lease basis; and for the common social, recreational or other reasonable uses normally incident to such purposes, and for purposes of operating the Association and managing the condominium."

The question is, while smoking is certainly common and recreational, is it reasonable and having a purpose that is mutually beneficial to all?  Any nonsmoker would say no and even a few smokers I’m sure would agree.

Regarding the behavior of friends or guests, they are clearly the responsibility of the owner as specified in your CC&R's.

And the behavior of contractors would be the responsibility of the owner or association depending on whos' behalf the work is being done (common area or owner responsibility items).

I must reiterate regarding this subject, if you want the freedoms that come with a standalone single-family residence and do not want your condo association running your world, I suggest you purchase a standalone single-family residence, which you alone will own and control.

--Bill--
 
Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association

Oct 21, 2009 04:14 PM #67
Rainer
257,845
Steve Merson
Keller Williams Realty - Austin, TX
CNE, e-PRO

Hi Stewart,

At the risk of perhaps oversimplifying this issue, surely if someone's cigarette smoke is bothering other people then it shouldn't be allowed!

California has certainly lead the way in banning smoking and I'm sure will be the first state to ban it completely.  That can only be a good thing!

Steve

Dec 16, 2009 08:04 AM #68
Rainmaker
540,648
Ginger Harper
Coldwell Banker Sea Coast Advantage - Southport, NC
Your Southport~Oak Island Agent!

This is very much a problem that we also have here along the NC coast.

 

Jan 19, 2011 02:39 PM #69
Rainmaker
147,270
Richard and Jean Murphy
Harborview Properties - Portland, ME
(207) 712-4796

Smoking is invasive. Anyone remember the "cone of Silence"? I recommend the "Cone of Smokers". People should be free to smoke, but not to pollute the air that others breathe. The pendulum is swinging, but not fast enough for the non-smokers.

May 15, 2011 10:06 AM #70
Rainmaker
68,225
Dominic Tartaglia
Tartaglia Realty - San Luis Obispo, CA
GRI, SLO first-time homebuyer specialist

Stewart, In San Luis Obispo it is illegal to smoke in ALL public areas and condos and appartments are fair game if the smoke affects other people. I actually have a blog on the subject here http://activerain.com/blogsview/1661053/california-city-makes-it-easier-to-kick-tobacco-use

Jun 08, 2011 04:52 PM #71
Rainmaker
147,270
Richard and Jean Murphy
Harborview Properties - Portland, ME
(207) 712-4796

I am in favor of people being free to do what they choose, but smoke travels and is a known harmful element. I say off the decks and patios.

Remember the "cone of silence" from Get Smart? These should be used for smokers who insist on permeating the air of others.

Jan 23, 2012 08:14 AM #72
Rainer
125
Freda Channell
What about grilling on the balcony? It may be legal but the smell of cooking flesh is worse than anything else. How can people oppose one type of smoke over others. If you outlaw smoking outside then common sense tells us that ALL smoking should be outlawed including grilling.
Aug 29, 2012 07:46 PM #73
Rainmaker
540,648
Ginger Harper
Coldwell Banker Sea Coast Advantage - Southport, NC
Your Southport~Oak Island Agent!

WE have not gotten to this point in NC yet.  But I feel it is coming.

Apr 04, 2013 11:51 AM #74
Rainmaker
243,462
David Pylyp
RE/MAX Realty Specialists Inc., - Toronto, ON

This is a passionate and timely topic;  Our condo building in Toronto Canada has astroturf on the (above grade terrace on the 5th floor BBQ area) Podium section between two towers.

 

The cigarette butts burning the astroturf are a) fire hazzard b ) will need to be replaced causing additional expense for owners.

 

How can we regulate this?   They do have the right to smoke in their suites, and some are tenants where the Condo has no method of enforcement.

 

David Pylyp

Toronto

Nov 26, 2013 10:08 AM #75
Rainmaker
272,817
Eric Boucher
ReadySetLoan Condo Team LLC - South Windsor, CT
The FHA/VA Condo Project Approval Guy

This is a complex topic because it is infringing on the unit owner's right of "quiet enjoyment" on both sides, the smoker's and the nonsmoker's.  One can argue that by buying into a condominium project, the unit owner has to understand and accept that neighbors are in close proximity and if they don't like that, they shouldn't buy a unit.

Jan 18, 2014 09:22 AM #76
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Rainmaker
476,663

Palm Springs Realtor Stewart Penn

Windermere Real Estate - Associate Broker
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