One common question raised in our Board of Director training classes is "What level of exposure does the Association have to claims of smoke infiltrating from a neighboring home?" While only a few regions in the nation have placed bans on smoking within the home, the trend for Association liability is growing. In March 2013, jurors in a Superior Court in California (Chauncey v. Bella Palermo Homeowners' Association, et al.) awarded $15,500 in economic damages and emotional distress to a family for smoke entering through windows and a sliding glass door. The smoke was travelling from a source that was between 25 and 90 feet away. The Association was liable for 60% of this amount - with the Management Company and owner of the source unit liable for the remainder. This judgment was rendered despite the fact that only a generic ban against noxious activities was listed in the Association’s governing documents, and the Association had taken some steps in attempting to reduce the occurrence of smoke in the common area.
California case law is frequently a bell-weather for other states, and while Georgia courts require explicit definitions of what is considered a nuisance or a noxious activity, this can be overridden by claims related to the Federal Fair Housing Act. Numerous HUD cases related to rentals have already established Fair Housing violations for smoke when the victim has a medical condition such as asthma.
The Board of each Association should hold a frank discussion with its membership about what will be acceptable when it comes to smoking, and adjust the governing documents to meet expectations. For example, a condominium may stipulate that the source unit of smoke maintain a HEPA filter system to capture fumes before these can escape the boundary of the home.
Being proactive in this area will reduce friction between neighbors and provide the Association with protection against a potential monetary loss.