David Swedelson's presentation for CAI-GLAC regarding smoking nuisance in condominium associations.

1. The Smoker Next Door
Condos + Smoke = Trouble
CAI – GREATER LOS ANGELES CHAPTER
MAY 23, 2012
DAVID C. SWEDELSON, ESQ.
SWEDELSON & GOTTLIEB

2. Today’s Goals
 Touch on scale of problem with smoke
 Help you understand the building construction
issues involved
 Update you on case law regarding smoking and noise
 Discuss what can be done “legally” to solve problems
 Discuss what can be done “physically” to solve
problems

3. Why are these issues problematic for associations?
 Subjective nature of complaints
 Transient nature
 In multi-family housing, some levels of odor must be
anticipated
 Other smells may also be irritants
 Lack of specificity in governing documents
 Conduct may have gone unrestricted for years

4. Smoking is not
as pretty as it
used to be.
The good news is that
the percentage of
Californians that smoke
keeps dropping and is
now about 12%

5. How smoke moves through buildings
 Open windows and doors
 Cracks at base of wall
 Holes in walls or ceilings
 Ventilation system may be conduit
 Construction defects?

6. Not Just About Cigarettes
 Pipes
 Cigars
 Marijuana
 Incense

7. Air moves
from high
pressure to
low pressure
High Low
Pressure Pressure

8. Exhaust fan
may suck
smoke in from
neighboring
units
Air
Air
Timers on Smoking pulled Lw
Adjacent blown
exhaust fans Unit through Unit Pressure
outside
are not wall
understood
Effects of wind

10. Building code on smoking
 Not addressed
 Some codes deal with air infiltration
 Some codes deal with distance between exhaust
vents and windows or air intakes

11. Government Statutes/Ordinances
 Utah passed a statute in
2006 that states that
tobacco smoke drifting
from one unit to another
can be a nuisance if it
occurs more than once in
each of two or more
consecutive 7-day
periods.

12. Government Statutes/Ordinances
 In January 2006, the
State of California
decreed that secondhand
smoke was a toxic air
pollutant.
 Several cities in
California have passed
ordinances that ban
smoking in condos.

13. Case law about smoking
 Fewer than 20 reported cases
 Cases started in the early 1990s
 Rulings are split
 Wide variety of legal theories are asserted
 Claims are asserted against the smokers, landlord
unit owners and condo associations

14. Types of Breach of
Covenant
claims filed in (1) Trespass
(3)
smoking cases
Nuisance
(9) Quiet
Emotional Enjoyment
Distress (5)
(1)
Warranty of
Habitability (5)
Defective
Construction
(1)
Battery
(2)
Constructiv Negligence (6)
e Eviction
(2)

15. Who Prevails?
Percentage Success
32%
Nonsmoker
68%
Smoker

16. Who Prevails?
 Non-smokers prevail 68% of the time on at least one
claim
 Smokers prevail only about 32% of the time
 Most of the asserted claims fail
 Many plaintiffs survive summary judgment but may
not prevail at trial

17. Nonsmoker Asserted Claim Results
8
7
6
5
4
3
2
Win
1
Loss
0

18. Factors in Smoking Cases
 Amount of smoke
 Where it originates
 How smoke gets in
 Promises made by landlords
 Sensitivity of the non-smoker

19. Can the Board refuse to get involved?
 Duty to investigate complaints
 Duty to enforce the Declaration
 Verification of the problem

21. Can condos ban smoking in units?
 One case supports the authority to do so
 No cases challenge the authority to do so
 Risk is that a restrictive covenant would be
successfully challenged
 Examples

22. Are smoking claims covered by insurance?
 Most probably not covered
 Board actions about enforcement may be covered

23. Modifications to reduce smoke transmission
 Could be done by the association or required of
(suggested to) unit owners
 Add pressurization fans
 Use smokeless ashtrays, air purifiers
 Seal baseboards and penetrations between units

24. Amend CC&Rs to prohibit or regulate
 Rule making authority of boards
 Ability to “restrict use” by vote of other owners
 Establishing measurable standards
 Are you regulating the activity, the annoyance, or the
construction of the unit?
 Regulation of smoking in common and limited
common areas
 Regulation within a home
 Can you regulate if no other resident complains?

25. What laws support regulation?
 Nuisance statutes
 Case law from states
“Persons living in organized communities
must suffer some damage, annoyance and
inconvenience from each other…if one
lives in the city he must expect to suffer the
dirt, smoke, noisome odors and confusion
incident to city life”
“Defendants’ conduct in smoking in
the privacy of their own apartment
was not so unreasonable in the
circumstances presented as to
justify the imposition of tort
liability against them.”

26. Enforcement Problems
 Lack of proof about where smoke comes from or how
it gets into a unit
 Difficult to inspect for violations
 Court enforcement may be impractical
 Fines may be ineffective
 Lack of objective measurement

27. Smoking Summary
 Can be regulated in common areas
 Case law supportive, but high standards
 Declarations supportive if you can prove annoyance
 Complete absence of smoke is unreasonable
 Standards on tolerable amounts in flux
 Building modifications may help
 Asking neighbors to modify behavior may help