Smoke-Free Opportunities in Condominiums and Coops

1. Smoke-Free Opportunities in Condominiums and Coops Change is in the Air

2. Description of Condos and Co-ops • 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.

3. Condominiums Can Adopt Regulations re Smoking • According to the website http://davis-stirling.com/ • “Most associations already prohibit smoking in enclosed common areas…” • There is a move in many condominium associations to prohibit smoking on balconies….” (and patios) • Some associations have banned smoking in playground areas to protect children

4. Real World Example-The Pasadena Collection • 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.

5. 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. • Owner must disclose these rules to potential buyers, renters, and Realtors. • Owners are responsible for the actions of their residents and visitors.

6. Additional Smoking Rules: Pasadena Collection • 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 …..

7. Pasadena Collection Never Put House Rules into Their CC & R’s • 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.

8. What do Realtors Think? • 43 Realtors were surveyed in 12/04-1/05 • 86% do not smoke • More than half said condos with no smoking in outside areas would appreciate more than those without a policy. • 98% agree or strongly agree that condo owners should inform potential buyers or renters about rules related to smoking.

9. What Do Realtors Think? • 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.

10. How Can Existing Condominiums Adopt Smoke-Free Rules • 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.

11. CC & R’s - Covenants, Conditions and Restrictions • 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

12. How Can We Help Condominium Owners Who are Suffering? • 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.

13. How Can We Help Condominium Owners Who Are Suffering? • 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.

14. Change is in the Air • 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”.

15. For More Help With This Issue • Contact Esther Schiller • Smokefree Apartment House Registry • 10722 White Oak Avenue, Suite 5 • Granada Hills, CA 91344 • 818/363-4220 – FAX: 818/363-2260 • smokefreeapartments@pacificnet.net • www.smokefreeapartments.org