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Court Upholds HOA Rule Against Smoking in Own Home
James Joyner | Friday, November 17, 2006
A Colorado judge has upheld a rule by a homeowners association preventing people from smoking in their own home.
A judge has upheld a homeowners association’s order barring a couple from smoking in the town house they own.
Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking. “We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio,” Colleen Sauve said.
The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves’ neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.
In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home. Oeffler stated “smoke and/or smoke smell” is not contained to one area and that smoke smell “constitutes a nuisance.” She noted that under condo declarations, nuisances are not allowed.
While this would seem beyond the reasonable scope of power of an HOA, especially when imposed post hoc on those who bought their homes without any way of knowing this restriction would be put in place, my knowledge of the applicable real estate law is minimal. And I’d be mad, too, if I could smell my neighbor’s cigarette smoke in my own home.
The solution, however, is a head scratcher:
The couple now has to light up on the street in front of their condominium building. “I think it’s ridiculous. If there’s another blizzard, I’m going to be having to stand out on the street, smoking a cigarette,” said Colleen Suave.
So, the neighbors are afraid of smoke coming through the walls but are fine with it in the open? How does that make sense? |
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