It sure feels good to know I was right!
Below is the explanation that was submitted to our AOAO. The BOD overstepped its authority (again!) and will have no choice but to repeal the smoking ban at our condo. I'm sure those two of my neighbors who smoke are very happy. The third one who doesn't spend much time here probably doesn't care either way. (I don't either, I just care about having things done the right way.) The fourth one, who claims to be allergic to second had smoking, yet I have a picture of him smoking a big Churchill on his lanai two years ago, probably will go bananas. (Yeah, that's the attorney.
) While I don't doubt the board members meant well, but unfortunately, there are no qualification requirements for the board members, and most have no clue about the condo law. It's time to smoke out the cockroaches! Smoking in Apartments or on Lanais Adjacent to Apartments.
Many Boards or owners in condominium units are interested in restricting smoking on lanais or within all of the apartments at the Project. The question is whether the Board has the ability to adopt such a policy and what changes to the governing documents may be necessary since regulating the use of apartments is much more difficult than regulating the use of the common elements. If the lanai is a limited common area than the Board has the authority to restrict its use by House Rules. The Condominium Property Act provides that the Board of Directors can adopt
house rules to regulate the use of common elements. HRS §514B-104(6). The By-laws may also provide that the Board can adopt rules to regulate the use of common elements. The authority to adopt rules as described in the By-laws will almost inevitably include rules related to operation and use of common elements.
If the lanai is part of the apartment and not a limited common area than its use can't simply be restricted just by the House Rules. Though the Board can adopt rules related to behavior within and the use of apartments but only under certain circumstances:
(a) Unless otherwise permitted by the Declaration or By-laws, an association may adopt rules and regulations that affect the use of or behavior in units that may be used for residential purposes only to regulate any behavior in or occupancy of a unit which violates the Declaration or By-laws. Otherwise, the association may not regulate any use of or behavior within units by means of the rules and regulations. The way for the Board to address this issue is to propose a change to the Declaration to expressly permit the Board to prohibit smoking within units or on lanais that are
part of the unit. Chapter 514B-32(a) of the HRS contemplates that restrictions on the use of units will be in the Declaration, and, totally prohibiting smoking will be seen by owners who smoke as a material intrusion on their right to smoke in their units. HRS Chapter 514A permits the Board to propose a change to the Declaration requiring 75% of the common interest approval vote.
There are no cases in Hawaii which discuss this issue in a condominium association. Notable case study is the Christiansen v. Heritage Hills 1 Condominium Owners Association, District Court Colorado (06CV1256) (2006). The association in the Colorado case based the smoking prohibition on an anti-nuisance amendment to the declaration. The Colorado trial court rejected an argument that the language of the declaration prohibiting a nuisance violated public policy. Like Colorado, the Hawaii legislature has acted to protect nonsmokers too. Chapter 328J-8 of the HRS prohibits smoking in common areas (but not in limited common areas) in apartment buildings and condominiums. However, the areas where the prohibition on smoking does not apply are private residences. Thus, like Colorado, the legislature stopped short of prohibiting smoking within private residences.
There are some serious concerns with proposing the adoption of such a change to the Declaration or the By-laws. The Board needs to recognize that if such change were adopted, the Board would be undertaking the responsibility of enforcing the same. Enforcement of this provision could prove difficult since it may be difficult to prove that odors or fumes or smokes emanate from within a specific apartment. It also could be difficult to prove that these odors or fumes or smokes are not from burning insect repellent coils, burning essential oils, or burning religious incense sticks, or even from a BBQ grill. Also, adoption of this change may expose the Association to claims for non-enforcement of rules. The Board must weigh these concerns before deciding whether or not to propose a change to the Declaration or By-laws. In a letter from the Hawai'i Attorney General..."The condominium association should be very careful when regulating smoking in units by the use of House Rules without obtaining a legal opinion from their attorney, since Chapter 514B-32(a) of the HRS contemplates that restrictions on the use of units, the permitted and prohibited uses of each unit, will be in the Declaration." In addition, at a minimum there is a risk that condominium Associations would be subject to lawsuits by residents who wish to smoke in the units.
The "Smoking Amendment to the House Rules" instituted by the Kona Sea Ridge BOD is invalid and unenforceable, therefore all issued warnings and fines should be reversed. Since HRS 328-JS prohibits smoking in the common area of all condos and apartment buildings, the BOD have no authority to override this law and permit smoking in the parking lot. Since HRS 514B-32(a) contemplates all restrictions on the use of the units have to be in the Declaration, to prohibit smoking on lanais that are part of the units, and to restrict smoking inside the units, the BOD will have to get the Declaration changed with the approval of 75% of all owners of Kona Sea Ridge. The only part of the "Smoking Amendment to the House Rules" that is enforceable is prohibiting smoking on lanais that are classified as limited common area.