Keeping in stride with California’s continuous movement to regulate public smoking, the law may support a community association’s ban on smoking in common areas. Beyond just the common area, however, an association’s board is also likely required to abate secondhand smoke emanating from exclusive use common areas and inside units. In fact, a failure to address secondhand smoke complaints due to smoke emanating from anywhere in the community could subject an association and its board to nuisance claims.
I. Birke v. Oakwood Worldwide – Smoking in Common Areas
In Birke v. Oakwood Worldwide et al. (2009)169 Cal.App.4th 1540, a residential apartment complex, Oakwood Worldwide (“Oakwood”), banned smoking in all indoor common areas and indoor units, but permitted smoking in all outdoor common areas. The plaintiff, a five-year old resident with asthma and allergies, sued Oakwood alleging that Oakwood’s failure to abate secondhand tobacco smoke in the outdoor common areas was a public nuisance. Oakwood argued that it did not have a legal duty to prohibit smoking in the outdoor common areas, so it could not be liable for failing to stop the alleged nuisance.
The Appellate Court agreed with Birke and ruled her complaint alleged what could be a valid nuisance claim against Oakwood such that she could try to prove the nuisance claim against the landlord. The Court reasoned that Oakwood, as a landlord, had a duty to maintain its premises in a reasonably safe condition and by failing to abate secondhand smoke in the common areas, Oakwood may have created a harmful condition to others and interfered with others’ comfortable enjoyment of life or property. The Appellate Court’s ruling returned the case to the lower, trial Court to decide if a nuisance actually existed. The lower Court decided that based on the facts in this particular situation, there was no nuisance.
The Court’s reasoning in Birke follows the holding in Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499 which found that community associations, like landlords, have a duty to exercise due care for residents’ safety. The result of Birke is that secondhand smoke can be a threat to safety so community associations that permit smoking in common areas may face potential liability for nuisance claims brought by residents. Similarly, Birke provides support for associations that attempt to ban smoking in all outdoor common areas. This does not mean, however, that an association is required to prohibit secondhand smoke entirely. It may instead impose restrictions on smoking, such as designating smoking and no smoking areas (it still must enforce verified nuisance violations). To that end, a board would likely be acting within its power to adopt reasonable smoking prohibitions if it found such activities created an unreasonable threat to the health, safety and welfare of the association’s residents.
II. Secondhand Smoke and Nuisance Claims in Exclusive Use Areas and Units
The potential for nuisance claims arising from secondhand smoke does not stop at smoking on the common area. Most CC&Rs prohibit nuisances, and to the extent the CC&Rs are silent on prohibited nuisances, Civil Code section 3479 prohibits private nuisances. These provisions ban anything that unreasonably interferes with someone’s use or enjoyment of his or her own property. The courts have made it fairly clear that secondhand smoke generally falls within this category and is considered a nuisance. What this means for associations is that legitimate secondhand smoke complaints – whether arising from smoke emanating from common area, exclusive use common area, or inside an owner’s unit – if not properly and timely addressed, could subject the association to liability for failure to abate a nuisance. This does not mean that all smoke from cigarettes is a nuisance. Rather, the key is that the board must investigate such complaints, determine whether a nuisance in fact exists, and if it does, the board must take steps to abate the nuisance.
III. Municipal Ordinances
As a further example of the legal trends in this area, the City of Pasadena passed a no-smoking ordinance applicable to existing and new construction multi-family residences, defined as two or more dwelling units. The ordinance applies to condominiums. The ordinance makes it unlawful to smoke in any area of the property, including in any common area, patio, or balcony – and yes, even inside the units. The ordinance requires an association to post specific signage in the community, but leaves enforcement of the ban to the City.
IV. No Smoking Provisions in the CC&Rs
The laws establishing smoke-free environments are unsettled, but appear to be evolving to support smoke-free condominium associations. Thus, we cannot explicitly conclude whether or to what extent a court would uphold an association’s efforts to enforce a smoking prohibition within the common area, exclusive use common areas, and/or units. Support may be found, however, if an association models its smoking provisions in the CC&Rs (or rules) on the Municipal Codes for the relevant area, if any exist. A recorded CC&R amendment approved by the members would undermine an argument the board exceeded its authority in establishing such a prohibition. Furthermore, this would provide new owners with notice that in purchasing within the community, they are giving up their right to smoke within all or some of the areas of the community. If an association passes a CC&R amendment banning smoking in various areas of the community, the enforce-ability of such a prohibition will be easier, more cost-effective and more robust than nuisance abatement action or a board-adopted rule.
V. No Smoking Rules
Even though a CC&R amendment may have greater enforce-ability, adopting a rule banning smoking in the common areas, exclusive use common areas, and even possibly the units, is an option so long as the rule is within the board’s rule-making authority. For example, if an association’s governing documents limit the board’s rule-making authority to rules governing the common area only, a proposed rule seeking to prohibit smoking within units or on lots may be subject to legal challenge (however, secondhand smoke should still be addressed pursuant to the nuisance provision in the CC&Rs, if one exists).
While a rule prohibiting smoking is fairly easy to adopt, it is also fairly easy to repeal, as a rule does not carry the weight and reasonableness presumptions of a CC&R amendment. Thus, the best way to ensure a court would uphold an association’s efforts to prohibit smoking is to enact an amendment to the CC&Rs whereby the members vote to make certain areas smoke-free.
In conclusion, as with many decisions a board must make, the decision on whether to prohibit smoking in all or part of a community is a difficult one. However, the trend in California seems to be geared towards smoke-free communities. As with all board decisions, a board must use its business judgment in determining what is best for an association as a whole.
If your board needs further guidance or has specific questions on this issue, we recommend you consult with legal counsel.
Revised January, 2015.