Clearing the Air: Boards Must Respond When Residents Complain about Secondhand Smoke

Although the population of smokers is declining, community associations continue to struggle with disputes between smoking and non-smoking residents. A California jury recently found a homeowners association negligent for failing to resolve one such conflict.Kim and Kai Chauncey complained to the board of their Trabuco Canyon Condominium community that their neighbors ─ tenants renting an adjacent unit — smoked “incessantly” on their patio and on the sidewalk in front of their unit. They said the “constant infiltration and presence of secondhand smoke” created a health hazard for their son, who suffered from asthma.When the board failed to respond, the Chauncey's rented an apartment elsewhere and sued the association and the management company, seeking $120,000 in damages. A jury found in their favor, awarding them a total of $15,000 ― $6,000 for economic damages and $9,500 for emotional distress. That was far less than the Chauncey's had sought, but enough to convey the jurors’ belief that:

• Secondhand smoke is a health hazard; and
• The association had a responsibility to address the Chaunceys’ concern about it and was negligent in failing to do so.

A Study ― in What Not to DoAlthough this case does not on its face seem to excavate any new legal ground, on the smoking battlefield, it does provide a useful example for condominium associations of the wrong way to manage smoking-related complaints.Boards can’t control smoking or any other activities within units, unless the activities violate an existing covenant or bylaw. But they can adopt and enforce rules governing behavior in common areas. The Trabuco Canyon board, in fact, had approved rules prohibiting smoking around the swimming pool and near a tot lot. Barring smoking on sidewalks (which are common areas) and patios (which are limited common areas) would have been a logical extension of those existing restrictions and an easy and non-intrusive way to respond to the Chaunceys’ complaint about smoke infiltrating their unit.The board had the authority to act and it did not; that’s why the association ended up on the losing end of this law suit.Boards don’t have to enforce every rule or respond to every complaint. They have some discretion in the rules enforcement area, but their discretion is limited. They can’t ignore complaints about issues affecting the health and safety of residents, and smoking is clearly on that list. The health risks of secondhand smoke are well known and associations face potential liability – far greater than this California jury assessed – if they fail to respond to the complaints of non-smokers who claim to have been injured as a result.A Nuisance in CaliforniaA board’s authority to address second-hand smoke complaints is clearer and broader in California than in most other jurisdictions, because a California appellate court has defined secondhand smoke as a “nuisance.” If a California condominium’s governing documents include a nuisance provision, as most Trabuco Canyon’s did, its board may be able to enforce a rule restricting smoking within units as well as in common areas. (As noted earlier, the Trabuco board didn’t have to go that far, because the smoking was occurring in common and limited common areas.)In Massachusetts, where the courts have not produced a comparable decision defining secondhand smoke as a nuisance, a board’s authority to control smoking stops outside a unit owner’s door. Associations that want to be smoke-free must persuade a super majority of owners to amend their bylaws to prohibit smoking anywhere in the community.But even though their enforcement authority is limited, boards may still be sued by owners who are offended or sickened by secondhand smoke. Boards must respond to those complaints and act within the limits of their authority to mitigate the problem: By asking smokers to smoke outside the building, for example; encouraging them to install smoke-eaters or other filtration systems (and perhaps having the association pay some if not all of those costs); sealing cracks through which smoke is infiltrating a unit; and possibly proposing a bylaw amendment prohibiting smoking in the community.Even if the mitigation measures prove inadequate and owners reject a smoking ban, boards will be able to demonstrate that they have done all they could to resolve the problem. That won’t prevent suits filed by non-smokers, but it will give boards a reasonable defense against them.Waiting for a Test Case in MassachusettsResidents concerned about secondhand smoke can file a suit against their smoking neighbors; the association can initiate a suit as well, asking a court to agree that smoking violates the community’s nuisance provision. We’d welcome a Massachusetts court decision defining smoking as a nuisance – there is no question it would make it easier for boards to deal with smoking complaints. But someone has to spearhead what would be a test case here, and no community associations have thus far been willing to undertake that effort, or cover the hefty legal costs it would entail.A state law (or municipal ordinances) prohibiting smoking in multi-family properties would take the enforcement problem (happily) out of association hands. In California, something of a national bellwether, 55 cities and counties have enacted measures restricting smoking in apartments and condominiums, 17 of those measures banning smoking entirely. The Massachusetts legislature has considered a ban on smoking in multi-family dwellings, but that measure, introduced in the past three legislative sessions, hasn’t gotten very far.That may change ─ eventually. Massachusetts and other states may decide to bar smoking in multifamily housing as they have in office buildings, restaurants and other public places. But that doesn’t seem likely to happen any time soon.In the meantime, the California case I’ve discussed hasn’t fundamentally altered the legal backdrop for smoking complaints in condominium communities and it hasn’t altered the advice we give our association clients: Take those complaints seriously and do everything you can to address them.The California decision did raise an interesting side-issue worth noting here. The plaintiffs contended, and the jury agreed, that the association’s failure to mitigate the secondhand smoke was a breach of its obligation to ensure owners the “quiet enjoyment” of their unit. In my opinion, this is an erroneous and disturbing conclusion.The obligation of landlords to ensure the “quiet enjoyment” of tenants in rental properties is well established; but this theory has not generally been applied to community associations, and shouldn’t be, because they do not have a landlord-tenant relationship with owners. However, some judges, like the California jury, have failed to grasp that distinction, imposing on boards the obligations of a landlord. This reflects a fundamental misunderstanding of the condominium structure and is inconsistent with it. It’s a misunderstanding that condominium attorneys and other industry professionals must try to combat.