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HOA bans smoking on condo balconies

Discussion in 'Real Estate' started by Little Fish, Sep 15, 2010.

  1. Little Fish

    Little Fish Beach Lover

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    Our condominium HOA passed a new regulation that prohibits smoking in all common and limited common areas. The rule specifically prohibits smoking on unit balconies.

    I don't have a problem with the HOA making the building a smoke-free environment, but I do take issue with the HOA telling me that I can't smoke on my own balcony.

    Q) Anyone out there have any idea of whether or not this type of rule is enforceable in Florida?

    Q) Further, would owners who purchased units prior to the rule be grandfathered from such a rule?

    Thoughts?

    Little Fish
     
  2. scooterbug44

    scooterbug44 SoWal Expert

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    My guess is that it is enforceable (HOA committees are usually full of lawyers) and that there would be no grandfathering - because it's a community wide rule.

    I will venture a guess that the reason it is banned from balconies too is that while the smoker is restricted to the balcony, the smoke, butts, and complaints from neighbors are not.

    Did they set up any "smoker friendly" locations?
     
  3. kurt

    kurt Admin Staff Member

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    I have no idea but find this interesting. Other private property owners can do it - hospitals, motels, stadiums, etc. I am not sure about an HOA.

    What do they say is the penalty?
     
  4. Little Fish

    Little Fish Beach Lover

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    Kurt:

    There is no stated penalty. The HOA has the right to impose fines and has a proceedure in place should fines be levied, but there is no system in place that spells out what the fines might be.

    Scooter:

    The HOA did not establish any approved smoking areas. This is now a smoke free building.

    Little Fish
     
  5. kurt

    kurt Admin Staff Member

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    Just wondering if you get the choice between suspended for a day or the paddle.
     
  6. Little Fish

    Little Fish Beach Lover

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    Oh... please let it be the paddle. :D
     
  7. DuneAHH

    DuneAHH Beach Fanatic

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    Am I correct in assuming that this issue was put before the required quorum of the ownership and passed by the majority vote stipulated in the condo docs (a copy of which must be provided at time of purchase by Florida state law)?

    The docs specific to the condo provide the basis for specific bylaw & rule changes, etc. etc..

    However, if memory serves, should a precedent get set that a rule is not consistently enforced for some period of time... then it becomes sort of moot and unenforceable.

    It's been 10 years since I served on a condo board... so things may have changed. If this is outdated info someone please chime in.
     
  8. Koa

    Koa Beach Fanatic

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    I know some condo HOAs which prohibit grilling on balconies, maybe to reduce risk of fire, but also to keep the people on the balcony upstairs to not get smoked out and greased out. I'm guessing that this smoking ban may be more related to the smoke going up rather than the butts going down, as many non-smokers really dislike cigarette and cigar smoke.

    Is it enforceable? I think it would be difficult to prove who is doing what. The HOA can dictate many things, and you buy into that concept when you buy a condo.
     
  9. Mango

    Mango SoWal Insider

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    Interesting topic. I've served on my Board for 7 years now and a Board can make the rules about signage and anything relative to safety without obtaining an HOA vote. Personally, I feel that prohibiting smoking in and on your property (balconies included if they are not maintained by the HOA) is a violation of someone's right to use and enjoyment of their property.

    It's looking like there aren't any really precedent setting cases in FL yet pertaining to this matter. A blog by Becker and Poliakoff, who used to be our HOA's attorney:

    Here's an interesting read from Law.com
    Battle over Smoking Catches Fire in FL
     
  10. Koa

    Koa Beach Fanatic

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    Without much thought about it, Mango, I would think similarly, that it is violation of your owner rights. However, if you think about all the other hoops some condos make owners jump through, there are many things which prohibit an owners rights, including the length of time you can rent your place and if you can rent to people who have a dog.
     
  11. Miss Kitty

    Miss Kitty Meow

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    Gives new meaning to the puck balcony! :biggrin:
     
  12. Franny

    Franny Beach Fanatic

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    :clap::clap::wub:
     
  13. PalmBeach

    PalmBeach Beach Lover

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    Condo ownership is limited to the interior space. Balconies are restricted-use common area that is maintained and insured by the condo association.

    It is not possible to smoke on a balcony without reducing the enjoyment of an adjacent owner that does not smoke. The non-smoker is forced to not use their own balcony. THAT is "a violation of someone's right to use and enjoyment of their property". I bet that there are other rules designed to keep occupants of one unit from disturbing occupants of other adjacent units.
     
  14. Little Fish

    Little Fish Beach Lover

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    DuneAHH:

    If memory serves, the original condo docs required a vote of 66% by the owners in order to change the rules. I don't know if it was ever put to a full vote as I didn't have any advance warning of an upcoming change, or discussion.

    I told one of the BOD members I believed the new rule infringed on owners private property use rights and was displeased that the board passed the rule without alerting me in advance of any discussion. He stated that according to their attorney, legally all the Board had to do to notify owners of an upcoming meeting was to post a note at the lobby level.

    I guess I need to come into town more frequently...

    Little Fish
     
  15. Little Fish

    Little Fish Beach Lover

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    Mango:

    Thanks for your post.

    Although the maintenance of unit balconies are the sole obligation of the individual owner, balconies are considered limited common areas in our building. The Board's attorney has "suggested" the Association has the right to set policies for limited common areas; hence, the no-smoking rule.

    I find this to be a very complex issue as I understand that some owners like to smoke on their balconies while others cannot stand second hand smoke that drifts onto their balcony. Both sets of owners have the right to enjoy their property. Who is right... I have no idea.

    If I was on the Board, I'm not sure I'd be willing to take up this issue when the potential cost to an Association in litigation is high.

    It's okay to grill on your deck, have dinner with your finest crystal and china on your deck, have pets on your deck, play your boombox on your deck... heck, it's probably okay to sunbathe nude on your deck... but if it comes to smoking a legal product on your deck...

    your're going to get the paddle.


    Little Fish
     
  16. Koa

    Koa Beach Fanatic

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    I guess you could always stink up the inside of your condo.
     
  17. Douglas the Intrepid

    Douglas the Intrepid Beach Fanatic

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    It's believe its not legal to grill on any condo balcony as it is against fire code. :idontno:
     
    Last edited: Sep 17, 2010
  18. Little Fish

    Little Fish Beach Lover

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    Koa:

    Persnally, when I have a smoke it is always outside as I, like you, want to avoid the odor that clings to furniture etc. I rent my unit and my contract states that the rental is a non-smoking unit although I allow smoking on the balcony.

    Invariably, should the Association decide to enforce this rule, smokers will continue to smoke but will move inside. This will happen with smoker-friendly and non-smoker friendly owners. Which is worse from a non-smoking owners perspective?

    Little Fish
     
  19. 30ashopper

    30ashopper SoWal Insider

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    The fine policy will be clearly detailed in the rules and regs. Ask the HOA / management company for a copy.
     
  20. Elephant Child

    Elephant Child Beach Lover

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    Seems to me if the condo can notify residents when they have to have additional fees to fix an unexpected roof leak, or the unexpected repair to the building, that they could use the same mailing addresses to notify non present residents the right to express their opinion on smoking or not smoking on their balconies. I am sure that they wouldn't count on a just a notice pin up in the lobby to ask for repair money.
     

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