Judge Forbids Couple From Smoking In Their Own Home

[matcom]

:popcorn:

<snip>

GOLDEN, Colo. -- A Colorado 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 No. 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.

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.

For five years the couple has smoked in their living room and that had neighbors fuming.

"At times, it smells like someone is sitting in the room with you, smoking. So yes, it's very heavy," said condo owner Christine Shedron.

The Sauves said they have tried to seal their unit. One tenant spent thousands of dollars trying to minimize the odor.

"We got complaints and we felt like it was necessary to protect our tenants and our investment," said Shedron.

The Suaves said they would like to appeal the judge's ruling but are unsure if they have the money to continue fighting. They said what goes on behind their closed doors shouldn't be other people's business.

"I don't understand. If I was here and I was doing a lawful act in my home when they got here, why can they say, 'OK, now you have to change,'" said Colleen Suave. "We're not arguing the right to smoke as much as we're arguing the right to privacy in our home."

http://www.wftv.com/health/10343373/detail.html

[jus_the_facts]

1. OH the HUMANITY.....Go suck on a tailpipe yer honor....

[reyd reid reed]

2. ...

I had a feeling that this was eventually going to happen somewhere...

Damn.

And...if the condo declarations say that "nuisances" are not allowed, seems to me that the people who complained are a nuisance in and of themselves. It's one of those things that just keeps on going. Next thing you know, someone's going to start to whine about the neighbor who makes chitterlings (those things REEK when they're cooking) or someone's going to whine about the neighbor with the wet dog or the litter box when the owners went on vacation...someone else's choice of air freshener or wind chimes.

It's a dangerous precedent.

:scared:

[youthere]

7. I don't see the nuisance thing stopping there...

How about if a neighbor gets a bad cold, or bronchitis? The constant coughing could be deemed a nuisance. Or someone has a new baby and it can be heard crying at 3 in the morning? Lord knows a can full of smelly diapers can create a nuisance.
How about if a neighbor likes to spend his evening scarfing chili cheese dogs and beer? I daresay the next morning...nuisance.:hurts:
Noisy sex? Nuisance
How about a loud dishwasher? Nuisance
Frequent vaccuming? Nuisance

You know, I absolutely cannot STAND that dried eucalyptus crap people put in flower arrangements, or the smell of french vanilla candles..perhaps I can get those banned too.


I am not a smoker, and I absolutely HATE the smell of it but FER'CRYIN' OUT LOUD! this shit is going too far!

[Deep13]

3. Amended its by-laws?

They can add restrictive covenants to real estate after the purchase? These associations need to be reigned in. I have always been suspicious of the concept of "private law."

[flvegan]

5. Passed by a Board and vote, usually.

Amendments to the bylaws 99% of the time need to be published to the owners and open to forum.

[Bassic]

25. Me too, I think it completely stinks.

I hope I never have to deal with such an association.

[flvegan]

4. Sounds like the builder of the condo building is the one with the sucking problem.

The HOA should've started with the construction first. What happens if someone decides to smoke...oh, I don't know...mullet? That's gotta get pretty penetrating, too.

[sniffa]

6. i hope they outLaw noisy sex next

since the howLs seep through the waLLs and constitute a nuisance.

[Pithlet]

8. I don't see how this is different from any other rule condo associations pass.

It's why I'd never buy a condo. If you don't like the new rule, whatever it is, either comply, or sell the condo and move. If you don't want to have to abide by rules like that, don't buy a condo to begin with. The only remedy to this is to make condo associations illegal. But, then, some people do enjoy living in places that set rules like this. I honestly can see the appeal in buying a condo in a smoke free building, if condos are your thing. I knew of someone who bought a condo, moved in with his dog, and the condo association subsequently banned dogs. He eventually got them to grandfather him in, but he had to fight for it. Condos are a pain in the ass, and this is just another example of that, and not evidence of some grand war on smokers.

[Momgonepostal]

11. We put up with stupid HOA rules because...

it was the only way we could afford a house in a halfway decent neighborhood. When we bought, the only single family homes we could afford were mega fixers in high crime areas. So we put up with the HOA because it's the lesser of 2 evils.

[Pithlet]

13. It's not that I don't feel any sympathy for people dealing with those rules.

And I can see the argument to make HOA rules unenforceable, rendering them completely useless because of examples like yours. But, then, I also see the side of people who willingly choose to live with HOA rules because they enjoy whatever benefits, real or perceived such rules bring. And I could see the argument from them that, affordable housing or not, you chose to purchase rather than rent, and you chose that particular HOA, so they shouldn't have to give up those benefits. I feel bad for the smokers having to deal with this rule being passed. I think rules like no smoking are better set up in the very beginning when the condos are first established, so that no smokers unwittingly buy in and then get whacked with something like this. But, as long as HOA rules are legally enforceable, these poor owners probably don't have much recourse. I went out of my way to avoid HOAs, nad it was tough. They seem to be gaining in popularity.

[Momgonepostal]

30. It's true, I see more of them than I used to

We haven't had any smoking issues come up here, and I doubt they will because 1) the president of our board is a smoker, and 2) our place doesn't appear to have seeping smoke problems. We share common walls with two neighbors, and one of the previous sets neighbors did smoke, but I never smelled them in my house, just occasionally if we were both on the patio at the same time. Definitely no seeping through the walls or the vents problems, though.

It's a shame when people are told something like this AFTER they buy. I'm sure the couple never in their wildest dreams imagined their HOA would tell them they couldn't smoke in their own homes.

[Pithlet]

31. Yeah. I do feel sorry for the couple.

It really does suck for them.

[tigereye]

9. you know that's headed for a higher court

[Momgonepostal]

10. That does seem awfully restrictive, but...

I can sympathize with the other residents. I lived for a short time in an apartment complex that must have been constructed poorly because not only did the neighbors smoke smell seep in, but it stayed in my hair, my clothes, etc. People at work would ask me if I were a smoker because my coat and sweaters would smell of smoke all the time. Even with my windows closed, I could smell the smoke coming in the vents.

It was really bad.

It's a shame when buildings are constructed that poorly. I don't know if all our vents were hooked up together or what, but it was very unpleasant.

And before anyone says, why didn't you move, I did.

[Divameow77]

22. I used to smoke pretty regularly

and I have never had anyone ask me if I'm a smoker because you can smell it on my clothes... oh and I worked in a bar that was filled with smoke.

I have a hard time believing that people are rude enough to ask you if you smoked because you stink.

[Momgonepostal]

28. It happened to me at least once, and then...

I had people, like my mother, comment that I smelled like smoke.

I don't think most people WOULD ask a smoker that...I wouldn't...but I think with my mother and with the one person I remember asking me, they were a little surprised, since most people in my circle don't smoke. And no one said, "you stink." Even my mother isn't that rude. I'm also a Mormon, so the smell of smoke on me would be more out of place than it might on other people.

The point is, enough smoke seeped into my home that, I and other people could smell it, not only in the home, but in my clothes when I was away from home. I'm not casting blame on the smokers as much as I am on the shoddy construction. Even apartments should be more separate than that, IMO.

[Gormy Cuss]

34. That's the real issue --crappy construction caused the problem.

This wasn't a case of them smoking on the patio and the odor wafting over to the neighbors. The better community solution would be to do whatever retrofitting was necessary to make all units contain smoke and its odors better. If the townhouses in this case were new construction, the HOA should have pursued remedy a long time ago. As it is, they should offer to buy back the unit and let the smokers move on.

[LynneSin]

12. As someone who is thinking of buying a condo....

....this is expected. And btw, living in an Apartment, fortunately I don't have any heavy smokers living near me but I can tell when someone has been smoking in the hallway.

When you buy the condo you do not own the physical building. I've had to eliminate like 3 condos in the area where I'm looking because of restrictive pet laws

[NC_Nurse]

14. I hate smoking AND HOA's

so Hah!

:o

[mongo]

15. Today HOA rules

Tomorrow municipal ordinces

And then State law...

But if you don't like it you can just move...

When the fuck will it end? Just because you live in a condo doesn't mean that you have no idividual rights in your OWN HOME.

[LynneSin]

18. But you don't own the building - just the interior of that space

HOAs can include plenty of rules such as remodelling rules, pet rules and appearance of the properties. Some may allow a grill on the deck, others may not. When you buy a condo you're only buying the space inside.

Think of it this way. What if you and I owned neighboring condos. You keep your condo updated, clean and in good repairs. But as a neighbor (and in a condo with no HOAs) I play my music really loud all day & night, grill smelly foods on my deck and hang my clothes over the deck railing and then decide to paint the outside of my condo really ugly colors. If it wasn't for HOA, the way I treat my condo would also depreciate the price of your condo too because prospective buyers would see this horrible neighboring condo and would not want to live next door to it.

I'm not sure how I feel about this policy, I suspect that the Condos were built on the cheap which allows for smoke to ventilate throughout the entire building. And this has nothing to do with health reasons, but being forced to smell smoke all the time would irritate the hell out of me too.

[Pithlet]

21. So, people don't have the right

to collectively decide to go in together and organize so they don't have to deal with certain nuisances? I hate HOAs. I would never ever live with one in a million years. But, I don't think I have the right to tell others that they can't make those decisions for themselves, and live the way they want to. If a person wants to live in a smoke free building, why can't they choose a condo with an HOA that forbids that, and ensure they never have to deal with smoking neighbors? Because smoking does effect other people. Smoking neighbor upstairs falls asleep with a cigarette and burns the whole place down. Smoke infiltrates into my unit, making me and everything I own stink like shit. I can see the appeal of smoke free buildings for those reasons, and don't see why I or anyone else should prohibit them.

I do think it sucks that this happened after they already bought, and that the HOA won't grandfather them in. I think they're acting like a bunch of asses in doing so. However, as long as HOAs are allowed to do this, and as long as people have the freedom to opt out of ever belonging to one, I don't see this as the same as the government telling *all* people they can't smoke in their homes. Now that I *would* have a huge problem with. I would never support such a law. But, I don't necessarily support banning HOAs either.

Edited to be clear, I think setting a rule like that after the fact is petty, and I don't blame the smokers in the story for fighting it. I just don't see this as the judge directly ruling that they can't smoke, only saying that the HOA had the right to set this rule. Because like it or not, they did. HOAs have always been able to set nuisance laws. It's nothing new.

[LostinVA]

16. HOAs can do anything they want

If you agree to live in a community that has on, you have to put up with it.

[matcom]

17. what about the fact that wasn't a rule when they bought the place?

:shrug:

[LynneSin]

20. Did they even put up a fight when the rule was being considered?

Only like 40% of this country who are eligble to vote in 2006 bothered to get out there and vote. So personally, I think the other 60% have absolutely no right to bitch about the government we have.

I don't know the situation, but I'm sure the HOA notified those living in the community of the potential rule being considered. If the smokers in the condo didn't do anything about it while the new rule was being considered then who's fault is that.

I'm actually looking at buying a condo, but some of the condo's I liked actually had a no pet rule. HOwever, if I bought a condo and then they opted to go 'no pets', I'd fight like hell for my rights to keep my two furballs. But that's just me

[LostinVA]

27. Makes zero difference if they agreed that it doesn't

ie that laws that laws can be passed automatically.

I live in a community that has an HOA, because it wa the only way I could afford a house in this area. My HOA is allowed to pass retroactive laws... anything they want, as long as it does not break any Federal Housing laws.

It sucks, but that's the way it is.

[underpants]

19. is this for just when she is breastfeeding or all the time?

[matcom]

23. only during road construction

*now is the time to insert your smoking pregnant woman worried about the street construction and her baby pic*

:D

[Bassic]

24. That's fucking ridiculous.

For crying out loud....

[WindRavenX]

26. Ridiculous

NT

[madinmaryland]

29. Absurd ruling.

Why not just make them caulk the door so the smell does not get out. Also, how can someone retroactively ban someone from smoking. They never would have bought the place if they could not smoke.

Moranic decision.

[noonwitch]

32. I smoke, but I smoke outside on my porch

I hate getting the smell in my sheets and towels.

It sounds to me like these townhouses are not very well built, if the smoke seeps through the walls. My mom lives in a condo, and her next-door neighbor smokes, but you can never smell it in mom's place.

[matcom]

33. we haven't smoked in our house for about 8 years

and I agree with you about the shoddy-built condos