Real Estate & Property Law

City Smoking Ordinances - Do They Apply to HOAs?

Smoking ordinances are in the news a lot as more and more cities in California are passing strict smoking ordinances. More and more associations are asking about passing rules and looking at CC&R amendments to limit or prohibit smoking in the common area, and some are even placing reasonable restrictions on smoking in condo units.

Here is a question from a reader:

"I am wondering if you could point me to information on your site, or another site, about local smoking ordinances. My question is this: if my city passes a smoking ordianance that covers multi-housing units does this also apply to my co-housing community. One of our board members says no it does not because we are goverened by our CCRs."

My answer: The city ordinance probably does apply, but one would have to read it to see if there are any exclusions and how it applies. HOAs are not immune from city ordinances. The HOA rules or CC&Rs can be more restrictive than city ordinances, but the ordinances would still usually apply as a minimum standard if there are not more restrictive conditions in the governing documents.

Where some confusion reigns is when the ordinance enforcement contingent of some cities will decline to enforce the ordinances within the HOAs or Condo associations using the excuse that the developments are private and there is a board to enforce restrictions. It is not really fair since everyone pays the costs of local government - even Condo and HOA owners pay city and county taxes just like everyone else, but sometimes the associations get the short shrift on municipal services.

But Associations do have more options than other non-HOA residents. The Boards have rule making authority and through the board powers as defined in the governing documents can usually align rules with or even adopt the city ordinances as part of the association rules (after going through proper procedures). In fact, having the objective standard of comparable local ordinances is helpful - but then the question arises as to whether the city is justified in refusing enforcement because the board can enforce the same rules.

It can get confusing or convoluted but most ordinances written for multihousing would apply not only to apartments but also condos and townhouses whether a corresponding rule was adopted or not.

If you want to see some more thoughts and machinations on smoking rights, see my concurrent blog at the Condolawguru blogsite with a question from a reader who believes trying to limit smoking in units is unfair.

Full post as published by California Condo & HOA Law on August 21, 2010 (boomark / email).