Smoking on Balconies - The Homeowners had their say

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

I recently posted a blog titled: "Smoking on Balconies - A Dilemma for Condo Owners" and received many interesting comments from both smokers and non smokers.

Our all-important HOA meeting was held to discuss this issue.

It appeared that most owners (even the non smokers) did not favor a formal ban on smoking on balconies as this seemed to be a draconian approach to the problem.

What surprised most of us at the meeting was that neither the Board nor the Management Company had approached the offending smokers to discuss an amicable compromise.

An interesting point concerning the HOA's liability arose.

What would happen if an owner became ill due to second hand smoke emanating from a balcony? Could the HOA be held liable since it didn't strictly enforce the CC&R's and Rules and Regulations which actually prohibit smoking in all common areas?

Then there is the question of "nuisance". People do not have a fundamental right to smoke. Accordingly, in California there is a growing movement to to restrict or ban smoking inside owner's units because of fire safety and nuisance reasons.

Since there is no constitutional right to smoke and smokers are not regarded as a "protected class" under California Law, the law seems to favor a restriction or ban on smoking.

Unless the smokers can reasonably limit the impact of their second hand smoke a ban on smoking could be enforced.


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Comments 12 New Comment

Patrick Scott
OConnor Title Guaranty, Inc.

I think James, Terry and Suzanne all make excellent points.  Your balcony is not a common area, there are far more dangerous pollutants fouling up the outdoors - like your car, and the HOA liability issue is about as ridiculous as saying you can't plant flowers because someone might be allergic.


July 23, 2009 08:43 PM
Leesa Finley
RED Properties - Raleigh NC Real Estate
RED Properties

Wow - Stewart, you really have some interesting comments on this one.  I am a smoker - well one month I am the next I am not - call me what you will.  If it was the month that I was though I would move my rear out of a condo that tried to tell me I could not smoke on my balcony. :)

July 24, 2009 06:57 AM
Jim Valentine
RE/MAX Realty Affiliates

Thanks for the follow up.  I was curious how this would turn out.  I am glad they didn't get overzealous in their approach.  I'm sure many of the people realized this would open the doors to total control, i.e.- no bicycles on balconies, or whatever.  I hope the severe smokers appreciate their neighbors' gesture and will work to minimize their intrusion in other's lives by their behavior.

July 24, 2009 08:48 AM
Mitchell J Hall
Lic Associate RE Broker - Manhattan, NYC
The Corcoran Group
Balcony:  An outdoor space that protrudes from a building and is usually enjoyed for the private use of an apartment owner. 

The neighbors can shut their windows. It is more of a problem when smokers don't have a balcony and the smoke from inside the apartment goes through the walls or ceiling and vents to another apartment.

 Terry, Not all of California has crappy air just LA.

July 24, 2009 10:27 AM
Anonymous #12

Mitchell, well that crappy LA air tends to blow this way and that, so I would imagine someone, somewhere in CA is inhaling that stuff :-)

July 24, 2009 04:27 PM

Palm Springs Realtor Stewart Penn

Windermere Real Estate - Associate Broker
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