CONDO ASSOCIATION LOSES SECONDHAND SMOKE CASE IN CALIFORNIA

Published on: January 22, 2015

An Orange County jury found a homeowners association negligent for failing to resolve a secondhand smoke dispute between neighbors at a Trabuco Canyon condominium.  Trends usually move west to east so New England condominiums and HOAs should be concerned and pro-active. After a five-week trial, Superior Court jurors last week awarded a family more than $15,000, finding the condo association and management failed to ensure the non-smoking family’s right to the “quiet enjoyment” of their own unit. The verdict comes amid a growing trend across the country. Non-smokers are complaining to homeowners associations, filing lawsuits and even appealing to city councils to try to stop tobacco smoke from infiltrating their apartments and condominiums. A bill is pending in the California State Legislature that would ban smoking in multiunit residences.  Numerous condominiums and HOAs across the country have enacted smoking bans and in light of this verdict, every condominium and HOA is advised to adopt a smoking ban. Kim and Kai Chauncey filed their lawsuit in March 2011 against the Bella Palermo Homeowner Association in Trabuco Canyon and TSG Independent Management. The defendants included Lauren and Richard Lee Pulido, identified as tenants of the condo next door. The Chaunceys alleged that the neighbors and their visitors smoked “incessantly” on their patio next to the family’s condo and adjoining sidewalks in front of their home, with the “constant infiltration and presence of secondhand smoke” entering their condo through windows and a sliding-glass door. The Chaunceys said the smoke aggravated their young son’s asthma. They said that despite their repeated complaints, the homeowners association, the management company, the tenants and the condo owner did not stop the problem. The family claimed it had to move out of its condo and rent a unit elsewhere.  Of course the association had little ability to stop the smoking since it was occuring in the unit and not on common areas and there was no ban. The jury found that the homeowners association and management company were liable for breach of contract and negligence. The homeowners association’s rules did not address secondhand smoke.  Curiously, even though smoking was not prohibited by the By-Laws, the jury still found a breach of contract.  That finding reinforces the lesson that courts do not always make correct or sensible decisions. The association’s rules state, in part: “Section 9.03 – Nuisance. No noxious or offensive trade or activity shall be permitted upon any part of the covered property, nor shall anything be done thereon which shall in any way interfere with the quiet enjoyment of each of the owners of his respective residence.”  The above language is present in almost every set of association documents and is codified in many condominium statutes, including Massachusetts.  It should not be surprising that second hand smoke was effectively found to be a nuisance.  This reinforces the proposition that associations should attempt to ban smoking building-wide. The Plaintiff asked for $120,000. Jurors came back with an award of $15,500. Of that, $6,000 was for economic damages and $9,500 for emotional distress. The jury found the homeowners association to be 60 percent responsible for the emotional distress damages, while the management company, the owner and the tenants were held liable to lesser degrees. The association did curtail smoking in some areas, including the swimming pool and tot lot. Medical records introduced at trial did not definitely show the boy visited a doctor for an “acute asthma” exacerbation until the child got pneumonia, about a year after the smokers moved into the neighboring unit. The family doctor testified there were continuous problems involving his asthma.

The jury verdict demonstrates that condominium associations are on the potential hot seat unless they ban smoking in the association.  This can only be accomplished by a Master Deed Amendment.  While there is no guaranty that associations will vote in favor of building-wide smoking bans, some legal commentators are of the opinion that if the condominium board at least tries to ban smoking (and it does not pass) that the board may be deemed to have acted reasonably and responsibly and could avoid a negative verdict like in this case.

If you or your condominium would like to explore a No Smoking Amendment, please contact Ed Allcock at eallcock@meeb.com.