Smoking on Balconies - The Homeowners had their say

By
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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Show All Comments
Rainmaker
1,180,173
Steven L. Smith
King of the House Home Inspection, Inc - Bellingham, WA
Bellingham WA Home Inspector

We forget how much we are impacted by neighbors. I used to have a neighbor who smoked on the other side of the fence, off the bedroom of my house. It floated in and was disgusting.

July 23, 2009 10:58 AM #1
Ambassador
1,092,980
Melissa Zavala
Broadpoint Properties - Escondido, CA
Broker, Escondido Real Estate, San Diego County

I did read your other blog post about this. And while I had not been losing sleep over it, I'm glad you shared this follow up. It does create an interesting dilemma. I wonder if (in the future) we will hear about cases such as these in the news.

July 23, 2009 11:01 AM #2
Rainmaker
268,561
Kathleen Lordbock
Keller Williams Realty Professionals - Baxter, MN
Keller Williams Realty Professionals

If by their freedom someone else endangers the health of another - there could well be something decided against the smoking guns!

July 23, 2009 11:29 AM #3
Anonymous
Anonymous
Anonymous

I think it could also be a problem as well. I think it might be better to but in the bylaws that if your were asked to stop, you could no longer smoke on the balcony. In another words if you became a nuisance you would be forced to stop.

I see more of a problem if the structure is wood.

If you in-force a ban, your insurance rates may go down.

I do think this is carrying it a bit far and I don't smoke, nor does anyone in my immediate family.

July 23, 2009 03:51 PM #4
Rainmaker
75,818
James Malanowski
theJEMgroup.com (DRE #01373117) - Palmdale, CA
REO Broker, Palmdale, Lancaster, Rosamond, CA

People don't have a fundamental right to sing or sneeze or blow their nose ... I guess they ought stop that too if it's bothering the neighbor.  Especially sneezing - you might be spreading germs next door and get someone sick.  The HOA might be sued for that too.  Hey, this is CA ... It could happen!

Yes, I smoke.  I also try and be considerate of others.  Problem is, the more we give the more gets taken.  I'm used to the anit-smoking Nazis, so what bothers me more is that you're saying that my patio is a common area.  So anyone can come and use my patio?  Seriously?  One more reason not to live in a condo.

I guess all the smokers that are being brought up on "HOA charges" could go and smoke on the public sidewalk just below the cranky neighbor's balcony.  Unless you live in Calabasas.

Fun stuff.

July 23, 2009 04:25 PM #5
Anonymous
Anonymous
Anonymous

Stewart, that is really stretching it to say someone could become ill from inhaling second hand smoke from an open air balcony!  I know some people are sensitive to it and get headaches, but really, I think this is going way too far.  And what is that nonsense about telling people they can't smoke in their own homes?  Is this Nazi Germany or what?  No, smokers have no "right" to smoke, as drinkers have no "right" to drink.  I'm more afraid of the nutbag behind the wheel who has had one too many.  And if I were a Californian, I'd be much more afraid of that crappy air you have to breath there.  Now THATS a health hazard. I'd like to see someone try to pin their illness on their neighbors outdoor smoking. And just when I thought California was cool.  Bah humbug!

July 23, 2009 05:13 PM #6
Ambassador
826,096
Suzanne McLaughlin
Sabinske & Associates, Inc. (Albertville, St. Michael) - Saint Michael, MN
Sabinske & Associates, Realtor

Living with a smoker, I hate it.  However, I really think much of this has gone too far.  Liability issues are a dime a dozen, and I find these lawsuits tiresome, plus they take up too much court time which could be used for more serious offenses.  Please don't email me if I have offended you.  I understand that you might disagree, let's just leave it at that. 

July 23, 2009 06:05 PM #7
Rainer
65,468
Patrick Scott
OConnor Title Guaranty, Inc. - Chicago, IL

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 #8
Rainmaker
633,405
Leesa Finley
RED Properties - Wake Forest, NC
RED Properties - Raleigh NC Real Estate

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 #9
Rainmaker
122,067
Jim Valentine
RE/MAX Realty Affiliates - Gardnerville, NV

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 #10
Rainmaker
509,509
Mitchell J Hall
The Corcoran Group - Manhattan, NY
Lic Associate RE Broker - Manhattan, NYC
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 #11
Anonymous
Anonymous
Anonymous

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 #12
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Rainmaker
476,088

Palm Springs Realtor Stewart Penn

Windermere Real Estate - Associate Broker
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