Judge Rules Couple Can Not Smoke In Their Own Home

Last December the Heritage Hills #1 Condominium Owners Association changed their rules to read that smoking will no longer be allowed on Condominium property. Then in March Rodger and Colleen Sauve filed a lawsuit stating what goes on behind their closed doors should not be other people's business. On November 7, Judge Lily Oeffler ruled the association could keep the couple from smoking in their own home. Colleen Suave. has stated 'We're not arguing the right to smoke as much as we're arguing the right to privacy in our home'



What comes next; will HOA's be able to dictate what you can or cannot cook in your own home because they do not like the smell of what you are cooking? Or how about someone moves in next door and they are allergic to the smell of your perfume; can HOA's then dictate to you that you cannot use that perfume? In addition, let us not forget that nice BBQ you have on your patio, will they be allowed to ban you from cooking there because someone does not like its smell.

This ruling wreaks of big brother taking control of our personal lives and should be struck down at least that is my personal opinion.

What do you think? Should the government or Home Owners Associations be able to dictate to you what you can or can not do in the privacy of your own home?



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I totally agree with you.

What is happening in this country?

I don't feel so FREE anymore.

They should have read the small letters at the bottom of the contract...

This is just one more of those cases where a one line answer should be enough, when people move into a house with those kind of conditions, there is not much we can say.

They should have read the small letters at the bottom of the contract...

But when they moved in the fine print did not prohibit smoking. That is the point you are missing.

According to the article the association ammended their bylaws, this couple didn't agree to anything, they are being railroaded. What's next, certain sexual positions are against the rules because the bed makes too much noise inconveniencing the neighbors?

It's their home, they paid for it in good faith, as smokers. This ruling is wrong.

ARMAP :

I concur, this is an obvious case of “ read the dammed small print “

The HOA charter will undoubtedly clearly state that all by-laws it enacts are binding, even ones passed AFTER you move in.
I am not privy to the exact charter of this particular HOA, but my friend has lived in one for over 5 years now, and in hers a 75% majority vote has to be cast in favour of any changes to their constitution.

By signing up for a community governed by committee you have to be prepared for changes in demographic & personality that you have little control over.

They must have had their chance to lobby against the “ no smoking rule” , and democratic process of HOA governance has tossed out a decision they do not like, so they have run to the courts. Shame on them.

Hell will freeze over before I would live in such a community, but that is just me.

SHOTS & INTREPID :

they have not been " railroaded " nor have thier rights been violated - they agreed to move into an HOA governed community , where there is a set of by-laws. further these by-laws can be changed , and all changes to the charter are legally binding on all tennants, that will be why the lawsuit was thrown out .
They did not have a legal leg to stand on.

I would have thought such a rule would include No Parking Vehicles within a mile of your home, Hydrogen powered vehicles excepted.

Anyway, that's a scary ruling and I'm wondering if it could become a precedent in the Courts.

Dallas

Like many other people in Portugal I live in an apartment building.
Each apartment has a "share" in the whole of the building, the "share" being a percentage of the total area of all the apartments, so the bigger apartments have a bigger "share".

Decisions regarding the whole building, like when we had to paint it again, must be taken by a majority and decided in a meeting, just like if it was a shareholders assembly.

The type of decisions that are under the jurisdiction of that assembly is regulated by the Portuguese law.

Obviously, a decision of that assembly can not be above the law or against the constitution, but in matters that only regard the building, the decisions of the assembly have as much power as if they were in the Constitution.

Any person that buys an apartment should know the law, not knowing the law is not an excuse.

Originally posted by ignorant_ape
they have not been " railroaded " nor have thier rights been violated - they agreed to move into an HOA governed community , where there is a set of by-laws.

I have never really read a set of rules for a HOA however it is my undertanding (I could well be wrong mind you) is that those rules normally apply only to allowance of pets, construction of the building, maintenance etc. But I do not think they can dictate what you do in the privacy of your own home, nor they can tell you what you can do inside of the residence like painting and what you put on the walls, nor can they tell you what you can or can not cook. Therefore it is my feeling that they have had their privacy invaded and wrongly so. no one and I mean no one should be able to tell you what you can or can not do in your own home.

An example would be where a homeowners association changed their rules banning Christmas decorations and displaying of flag issue, both which were over turned by SCOTUS, I might add.

[edit on 11/18/2006 by shots]

I could almost resign myself to agree with this if it weren't for the reasoning behind it. Had the HOA argued it was a fire hazard, then fine; I'd still think they were overreacting and just one more organization looking for an excuse to ban smoking, but at least that's a quasi-reasonable fear in a communal living arrangement.

But the smell? For chrissakes, I've had to put up with rather obnoxious cooking odors--many much, much worse than cigarette smoke (even before I started smoking) before in an apartment. I've had to put up with pets that stink and won't shut up. I've had to put up with noisy children banging on walls way past their bedtime. That's just part of the picture.

Do I agree with the HOA? Hell no. I think it's stupid. Should they have been taken to court for this? Without reading the actual HOA agreement, I'd have to say no, there most likely isn't a case there. Unfortunately, ignorant_ape is most likely correct--there was probably a clause stating that all tenants had to abide by future by-laws as well as current ones (and the HOA would be damned stupid to not have such a clause.) The only thing the tenants can do now is either lobby to repeal that with the HOA or "vote with their feet," pack up and move out. I know I would. Then again, I doubt I'd move into a condo in the first place (and hopefully never another apartment either; freezing in a car is better IMO than listening to some jackass bump techno when I'm trying to take a nap and it's too early to file an actual complaint.)

Well, I stand corrected. I still think it's wrong. If I were this couple I would begin cooking mackerel on a regular basis. Anyone that has cooked mackerel knows what I'm talking about.

I have been trying to research what is considered normal in HOA's and oddly enough not one of the rules I have found dictates anything about the individual owners lifestyle; they all pertain to the property itself and how it is maintained

Homeowners' associations can often assess mandatory fees for common property maintenance, which can get expensive if the development has a pool, golf course or other recreational facility. Many associations in housing developments let their boards raise regular assessments up to 20% per year and levy additional special assessments with no membership vote for a new roof or other capital improvement. If you're on a tight budget, check the homeowners' association membership fee and how easy it is for the board to increase the amount. Also, if parts of the development have been occupied for a while, attend a homeowners' association meeting and talk with the officers about financing and other issues of concern.

What Homeowners' Associations May Regulate
(Not an Exhaustive List)

basketball hoops
house design
sheds
clotheslines, lawns, shingles
exterior paint, mailboxes, swing sets
fences, noise, trees
garages, outdoor lights, TV antennas
garbage cans, views, window coverings
hedges, weeds
home businesses, pools, wreaths
pets (size or even acceptability)

www.nea.org...

It should be noted that SCOTUS has already overuled those HOA's that governed Flags, Christmas displays and DISH TV Antenas which made those rules unlawful.

I would be interested if others could show us (with url links)where other rules have been placed that can govern the actual way one lives though.



[edit on 11/18/2006 by shots]

Originally posted by intrepid
If I were this couple I would begin cooking mackerel on a regular basis. Anyone that has cooked mackerel knows what I'm talking about.

Never had the pleasure of that but others have suggested Curry Cooking, sour Kraut or perhaps living some Limburger on the counter though

People need to start taking care of themselves. If smoke was coming into the unit, the neighbor should have discussed it with the couple. The resolution reallly didn't need to include a sweeping bylaw banning smoking.

Perhaps the neighbor did. Stupid drama. But then again, people need something to worry about when its not american idol season.

Wow, things are going downhill faster than I would have thought.

If these people pay there rent or whatever they pay, and take
care of the place, than it should be no ones busines if they smoke
in there own home or not.

Democracy is only a goood thing on the oarge democratic level,
not on this level.

I hope the HOA is fined and the judge fired.

Well, this is democracy in action. As has been pointed out, if you choose to live in a HOA managed community you are tacitly agreeing to the will of the majority. A former girlfriend of mine lived in a condo complex. A guy living a floor up from her had a fire in his unit because of careless smoking that caused smoke and water damage to several units including hers. Her building tried to enforce a no-smoking rule but failed. About a year later the guy had another careless smoking fire that put two people in the hospital and caused even more damage than the first fire. In addition, everyone's homeowner insurance went up. So yes, there are certain things that although done within the confines of your home do have the very real potential for affecting others.

Originally posted by iori_komei
I hope the HOA is fined and the judge fired.

If there is legislation that prohibits the HOA of making this kind of decision, than yes, I agree with you.

But if there is no specific legislation and people are in the hands of the majority when they buy their house and sign the contract, then the judge made the only decision that he/she could make. In this case, their only hope, I think, its something like the Supreme Court, if it was in Portugal it would be the Constitutional Tribunal.

But why ban it on the property? They should at least allow them to smoke on their balconies.

It is true that the homeowners associations can change any of their rules as is seems fit.

Also the can sell their contracts to other agencies.

My brother and his wife are having a very big problem with their home owners association in their area, they sold their contracts to another group and now their rates has been increased 3 thousand dollars a year with no notification of the change and to be taken as a fact.

Still they can change any rules or do anything they want.

The home owners filed a law sue against the associetion and thy lost because is all about money and who is behind of it.

Yes . . . in other worlds if you don't like what they do . . . then . . . you can only move.

Like that, who move in and out of some particular areas is control. Pretty much the area where my brother lives with his wife has been cleaned pretty good, from undesirable, low income and particular ethnic backgrounds if you don't have the money to afford the area, you can not live in there.

This is happening more often that many believe specially around some cities.

It seems that now is extending to more private issues and personal choices also.