Smoking on Balconies - A Dilemma for Condo Owners

Stewart, yes, new buyers, if they don't accept the CC&R's always have the option of not buying.  But the issue that will have to be faced is between the current owners who purchased under the current CC&R's and currently reside in the building.   What rights do the majority of the smokers, those who are considerate of their neighbors have in your association and under California law? 

Stewart,

Just so I understand this correctly, people can BBQ whatever on their grill with all kinds of odors and smoke and the complaint is a little cigarette smoke? I think correctness has gone too far. I smoke a pipe and there's no way I'm giving that last pleasure up for anyone. Besides, what do you do after sex? Chew mints?

A condo legally, is not a single family home, and the individual rights of a condo owner simply do not exist as with a single family home.  If someone wants to use their property as, and have the rights of a single family home owner, I suggest they purchase a single family home.

Here's an excerpt from our CC&R’s circa 1989, Washington State) 

“11.10 Offensive Activity - No noxious or offensive activity shall be carried on in an apartment or common area, nor shall anything be done therein which may be or become an annoyance or nuisance to other owners."

Your issue has nothing to do with an individual’s right (to smoke or anything else). It has everything to do with the necessary and normal enjoyment of your property, that clearly trumps the unnecessary (offensive, annoying, or nuisance) activities of any individual. CC&R’s are to be interpreted liberally and always protect the property and the normal enjoyment of the property, rather than any individual behavior. You can’t Blair your stereo (noise pollution), you can’t shine bright lights in someone’s window (light pollution), and you can’t pollute the air that all are forced to share. All of these have been and are considered forms of trespassing.

Other than the interior airspace within the unfinished walls, ceiling and floor of your apartment legally defined as your property, all else is common area, even the dry wall itself is usually considered common area (for its sound and fire control properties), and certainly the airspace within the common or structural walls and floors which the smoke is seeping through is common area. Limited common areas are fractionally owned exactly as any other common area, with the legal distinction that that area is reserved exclusively for the use of an individual unit. You all own a fraction of the balcony or parking stall or area, or wall cavity, or floor cavity, that the smoke is coming from or is getting through, and any owner has the right to limit any activity within any unit, if it can be shown to be an annoyance or nuisance.  Any individual right to any activity within your unit ends when the effect of that activity protrudes beyond your unfinished walls, floors or ceilings. Again, these are not freestanding single family residences and can not be consider to be.

I hope my analysis helps everyone better understand the unique situation that is a Condominium Association.
 
--Bill--
 
Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association

Regarding the comment about the Condo Association running the world...

You must remember that is your condo association is a non profit corporation. Yes you are all part owners of a corporation and have no individual rights to do anything that would reduce the use or benefit or value of someone else’s share in that corporation (in this case their apartment and common area).

The fact that you used to smoke or that many people in your area do or tolerate smoking doesn’t change this fact.

That, that is beneficial to all has to be protected as indicated in this excerpt from our CC&Rs (Washington State Circa 1989)

"By acceptance of a ...contract for sale, ...or any privileges of use or enjoyment, respecting the property or any apartment..., it is agreed that this Declaration, ...effecting a common plan for the condominium development mutually beneficial to all of the described apartments, ...are binding upon the entire property and upon each such apartment as a parcel of realty, and upon its owners..."

I don’t see anything there or anywhere in our 60+ page CC&R's that guarantees an individuals right to smoke, or another behavior not directly required for the normal use of the property.  Smoking simply is not beneficial to all, and can be argued as unnecessary.

Another excerpt relating to "Use of the apartment"
"The buildings and apartments shall be used, for single family residential purposes only, on an ownership, rental or lease basis; and for the common social, recreational or other reasonable uses normally incident to such purposes, and for purposes of operating the Association and managing the condominium."

The question is, while smoking is certainly common and recreational, is it reasonable and having a purpose that is mutually beneficial to all?  Any nonsmoker would say no and even a few smokers I’m sure would agree.

Regarding the behavior of friends or guests, they are clearly the responsibility of the owner as specified in your CC&R's.

And the behavior of contractors would be the responsibility of the owner or association depending on whos' behalf the work is being done (common area or owner responsibility items).

I must reiterate regarding this subject, if you want the freedoms that come with a standalone single-family residence and do not want your condo association running your world, I suggest you purchase a standalone single-family residence, which you alone will own and control.

--Bill--
 
Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association