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Smoke-Free Opportunities in Condominiums and Coops Change is in the Air
Description of Condos and Co-ops n n A condo owner owns the inside of the unit. The condominium association is responsible for the space between the walls and the outside of the building. The CC & R’s (Covenants, Conditions and Restrictions) dictate how the association operates and what rules owners must obey. A co-op is owned by all of the owners. If all the owners but one abandon the property, the last owner has to pay the mortgage.
Condominiums Can Adopt Regulations re Smoking According to the website http: //davis-stirling. com/ n “Most associations already prohibit smoking in enclosed common areas…” n There is a move in many condominium associations to prohibit smoking on balconies…. ” (and patios) n Some associations have banned smoking in playground areas to protect children n
Real World Example. The Pasadena Collection n n New condominium building (60 units) in Pasadena built around a courtyard with a hot tub. Owners paid approximately $400, 000 for a 2 -bedroom, 2 -bath small unit, some with balconies Member of the Board contacted Pasadena Tobacco Education Program and SFAHR because of tobacco smoke drifting into his unit from the balcony below. Surveys were conducted by Pasadena Volunteers and Registry Staff.
Pasdena Collection Success No smoking (anything by anyone) in outdoor and indoor common areas, and exclusive use common areas (balconies and patios included) within the project. n Owner must disclose these rules to potential buyers, renters, and Realtors. n Owners are responsible for the actions of their residents and visitors. n
Additional Smoking Rules: Pasadena Collection n Drifting tobacco smoke from within a unit that enters another unit is also prohibited and will be enforced under the nuisance provision of the CC&R’s. Violation of any provision of the CC&R’s …may result in fines. Board of Directors has the authority and power to enact rules and regulations …including a schedule of fines which may be imposed after notice and a hearing …. .
Pasadena Collection Never Put House Rules into Their CC & R’s n n n n BUT OCEANSIDE STORY Patty lives in condo in large building in Oceanside Elderly neighbor chain smokes; Patty is getting sick Over several years Patty works with HOA Board to take action about drifting smoke Patty gets sicker and sicker New Board President is an attorney. Agrees with Patty. HOA passes a no-smoking policy for entire building Elderly neighbor refuses to stop smoking in unit. HOA gets an injunction to require her to stop smoking. Her children move her and advertise unit in S-F bldg.
What do Realtors Think? 43 Realtors were surveyed in 12/04 -1/05 n 86% do not smoke n More than half said condos with no smoking in outside areas would appreciate more than those without a policy. n 98% agree or strongly agree that condo owners should inform potential buyers or renters about rules related to smoking. n
What Do Realtors Think? n n 58% of Realtors said that condo boards do not have the right to regulate smoking inside units even if the smoke is found to be bothering other residents. 84% said condo residents have the right to smoke in their units. 98% said non-smoking residents have the right to be free from tobacco smoke inside their units and anywhere inside the building (89%) Only 36% agree that potential buyers or renters should be informed about adjacent smokers.
How Can Existing Condominiums Adopt Smoke-Free Rules n n The best way to begin is with a survey. The Association needs to educate its members. The Association can adopt smoke-free rules but in California, a majority of the owners can challenge those rules and require that they be reversed. The Smoke-Free Rules need to be added to the CC & R’s and filed with the appropriate government body. An attorney is needed to do this.
CC & R’s - Covenants, Conditions and Restrictions n n n Visit www. smokefreeapartments. org for copies of CC & R’s developed by an attorney who specializes in condo law. 5 separate documents ¨ Existing buildings – common enclosed areas ¨ Existing buildings – outdoor common areas ¨ Existing buildings – exclusive use common areas ¨ Existing buildings – individual units ¨ New buildings – the whole enchilada
How Can We Help Condominium Owners Who are Suffering? n n n Offer to provide material and/or do a presentation to the Board Point out that drifting tobacco smoke is not just a problem for the person who is complaining or for people who are sensitive. This problem can happen to anyone as new residents move in. For sensitive residents, condominium associations need to provide reasonable accommodations under fair housing laws.
How Can We Help Condominium Owners Who Are Suffering? n n Explain that air purifiers don’t work. Explain that remedial construction efforts are not likely to be totally successful. Urge the condo owner to research the CC & R’s for clues about the definition of nuisance and whether it can be applied to the problem of drifting tobacco smoke. Urge the condo owner to work toward changing the CC & R’s or convince the Board to take action.
Change is in the Air n n City of Calabasas has passed an ordinance which requires no smoking in enclosed common areas and outdoor common areas in multi-unit residential housing. They have also defined tobacco smoke as a nuisance. In Mass. , Court Upholds Eviction of Condo Tenants for Smoking A Co-Op in New York declared itself smoke-free. CAI (Community Associations Institute) in Los Angeles agrees this is an “emerging issue”.
For More Help With This Issue Contact Esther Schiller n Smokefree Apartment House Registry n 10722 White Oak Avenue, Suite 5 n Granada Hills, CA 91344 n 818/363 -4220 – FAX: 818/363 -2260 n [email protected] net n www. smokefreeapartments. org n