As the old saying goes, where there’s smoke there’s fire. Community association boards are sometimes confronted by the fire of owners’ anger when they are bothered by other owners’ cigarette smoke. However, boards do not have the power to prevent owners from smoking in their units and in the common areas unless there are restrictions on smoking in their associations’ governing documents (the 2005 Seattle initiative restricting smoking does not apply to condominium and homeowners associations).
A recent lawsuit in California illustrates how far some owners are willing to go to be free of cigarette smoke. The Oakwood Apartments permit smoking in the outdoor common areas of the complex. Melinda Birke, a five-year old girl who has allergies and asthma, lives at Oakwood. Secondary smoke in the outdoor common areas made her symptoms worse and contributed to her falling ill with pneumonia on three occasions. Melinda’s father asked the board to ban smoking in those areas, but it refused to do so. Melinda then filed a lawsuit against Oakwood alleging that the failure to ban smoking in the outdoor common areas constituted a public nuisance. Oakwood filed a motion to dismiss Melinda’s lawsuit. The court ruled that Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and that Melinda could prevail if she submits evidence at trial that supports the elements of her public nuisance claim.
It is difficult to predict how a Washington court would rule if it was presented with the facts in the Oakwood case. The nuisance statute in Washington states in part that a failure to perform a duty is a public nuisance if it “annoys, injures, or endangers the comfort, repose, health, or safety of others” and “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal”. Given this broad definition of public nuisance, the outcome of the case would likely depend on how the court characterized the association’s duty to regulate the use and maintenance of the common areas. The fact that many associations’ governing documents contain a section prohibiting “noxious or offensive activities” and “conduct which may be an annoyance or nuisance” could also form the basis for a separate legal claim.
The Oakwood case demonstrates that condominium and homeowners associations which allow smoking in their common areas could potentially be subject to liability. As a result, boards may wish to consider amending their governing documents to ban or restrict smoking in common areas. The applicable laws in Washington give condominium and homeowners associations the general power to regulate the use and maintenance of common areas. Rules banning or restricting smoking in common areas can therefore be adopted by boards without a vote of the owners unless there are contrary provisions in their associations’ declarations or covenants.
A recent lawsuit in California illustrates how far some owners are willing to go to be free of cigarette smoke. The Oakwood Apartments permit smoking in the outdoor common areas of the complex. Melinda Birke, a five-year old girl who has allergies and asthma, lives at Oakwood. Secondary smoke in the outdoor common areas made her symptoms worse and contributed to her falling ill with pneumonia on three occasions. Melinda’s father asked the board to ban smoking in those areas, but it refused to do so. Melinda then filed a lawsuit against Oakwood alleging that the failure to ban smoking in the outdoor common areas constituted a public nuisance. Oakwood filed a motion to dismiss Melinda’s lawsuit. The court ruled that Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and that Melinda could prevail if she submits evidence at trial that supports the elements of her public nuisance claim.
It is difficult to predict how a Washington court would rule if it was presented with the facts in the Oakwood case. The nuisance statute in Washington states in part that a failure to perform a duty is a public nuisance if it “annoys, injures, or endangers the comfort, repose, health, or safety of others” and “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal”. Given this broad definition of public nuisance, the outcome of the case would likely depend on how the court characterized the association’s duty to regulate the use and maintenance of the common areas. The fact that many associations’ governing documents contain a section prohibiting “noxious or offensive activities” and “conduct which may be an annoyance or nuisance” could also form the basis for a separate legal claim.
The Oakwood case demonstrates that condominium and homeowners associations which allow smoking in their common areas could potentially be subject to liability. As a result, boards may wish to consider amending their governing documents to ban or restrict smoking in common areas. The applicable laws in Washington give condominium and homeowners associations the general power to regulate the use and maintenance of common areas. Rules banning or restricting smoking in common areas can therefore be adopted by boards without a vote of the owners unless there are contrary provisions in their associations’ declarations or covenants.
