Smoking on Balconies - The Homeowners had their say

Real Estate Agent with Bennion Deville Homes 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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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.

Jul 23, 2009 03:58 AM #1
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.

Jul 23, 2009 04:01 AM #2
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!

Jul 23, 2009 04:29 AM #3
Norma Brandsberg
Marks Realty Co. Inc., Lynchburg, VA, 540-586-9496 - Forest, VA

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.

Jul 23, 2009 08:51 AM #4
James Malanowski (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.

Jul 23, 2009 09:25 AM #5
Terry Haugen STAGE it RIGHT! 321-956-2495
Stage it Right! - Melbourne, FL

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!

Jul 23, 2009 10:13 AM #6
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. 

Jul 23, 2009 11:05 AM #7
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.


Jul 23, 2009 01:43 PM #8
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. :)

Jul 23, 2009 11:57 PM #9
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.

Jul 24, 2009 01:48 AM #10
Mitchell J Hall
The Corcoran Group - Manhattan, NY
Lic Associate RE Broker - Manhattan & Brooklyn
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.

Jul 24, 2009 03:27 AM #11
Terry Haugen STAGE it RIGHT! 321-956-2495
Stage it Right! - Melbourne, FL

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 :-)

Jul 24, 2009 09:27 AM #12
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Palm Springs Realtor Stewart Penn

Bennion Deville Homes - Broker Associate
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