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Smokers are scared, ask for help

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Contributed by: Rodger and Colleen Sauvé on 12/7/2006

We are scared to death, as this is all we own. I cannot find a agency to uphold state statute that could help us. We do not know where to turn. This is our only home, and don't know how to save it. Please read our letter.

We live in a townhome in Golden, Colorado purchased more than five years ago. The town home is one unit of a building containing four total units, sharing common walls only.

My husband and I are the only owners who live in the building, and are smokers. The other three units are rented by their owners. The four units comprise the Heritage Hills No. 1 Condominium Owner's Association. Each owner holds 25 percent of the property and pays taxes accordingly.

Around two and a half years ago, the owner of the unit next to us, who knew us as smokers, began to rent the unit to her mother. The renter complained that she could smell smoke from our unit and had prior issues arising from her sensitively to smoke in previous residents.

Prior to her lease, her son had lived in the same unit, and was a smoker. The owner of unit #1 confessed in testimony that she was a "social" smoker when she lived here. Despite numerous cooperative efforts to appease her complaint, this past December, the owners of the other three units, who do not live here, decided to amend the by-laws of the association to prohibit smoking anywhere on the premises, including inside our individually owned unit.

The HOA then sent us a letter notifying us they had received a complaint of smoking, and threatened us with fines if this continued. We hired a lawyer, and took our case to Jefferson County Court. We argued the amendment the HOA had passed as an unreasonable restriction, certainly within our privately owned unit.

We argued the amendment was passed capriciously, if this was a "continuing" problem, why wait five years to act? We argued that "odor" was not second-hand smoke, and testimony reveled no other odor, i.e.; cooking, cleaning products, etc.. were smelled in the adjoining units. How can only one odor mitigate? We asked the amendment to be revoked.

The judge would not hear testimony regarding procedure stating it was not a part of disclosure. We were confused by this, as we understood it was. Had she heard procedure, she would have heard testimony, and reviewed correspondence regarding the HOA and their lawyer's assertion that the Colorado Common Interest Ownership Act did not apply to this community, yet they use it in the smoking amendment.

She would have heard testimony that although officer's were elected in February, and I was the secretary, in March an overnight "emergency" meeting was held and the three other owners voted themselves as Directors and then appointed themselves as Officers. She might have heard testimony that the "Board" raised the HOA dues from $130 per month to $175 per month to pay their legal costs. Without hearing argument for procedure, we feel the Judge heard only half of the story.

November 7, 2006, District Court Judge, Lily Oeffler, rendered her decision. Her ruling found that the amendment by the HOA did not abrogate a constitutional right, and ruled in favor of the HOA. Stating that, "the migration of smoke and/or smoke smell in this setting is like extremely loud noise." Her ruling states that, "The issue of whether there was actual smoke or simply a smoke smell is irrelevant."

We believe this ruling needs to be appealed, but cannot afford to do so without help. If odor constitutes nuisance, and this ruling stands, it should concern us
all. This seems to us to lead to a nightmare of future lawsuits involving odors
that are offensive by a litany of those who are "sensitive."

We understand we have only 45 days in which to file our appeal. We are desperate for help, as we feel we no longer have ownership of our property. We are hoping to get help. We do not understand how this would be enforced without taking our right to privacy. We believe this is not a smoking issue, but a property issue and an abuse of HOA authority.

The judge also ruled each party shall bear their own fees and costs, the HOA has recently filed a motion with the court asking that we pay their costs.

Thank you,
Rodger and Colleen Sauvé
303-215-0226
18230 West 3rd Ave. # 2
Golden
Wapiti1M@aol.com

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Showing 1 of 1 comments

Submitted By: joseph nagle

posted on 12/12/2006 @ 1:38:34 PM

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I agree with the judge; smoking can be construed similarly to noise polution. You chose a condo community, by which, choosing to abide by the elected officials (legal) decisions, by-laws, changes to by-laws, dues, changes to dues, etc. You are in a Democracy and must deal with it. You have chosen to share common areas and limited common areas in a condo community. If you would like the rules changed then I would suggest lobbying two of the three that voted against smoking in an effort to win their votes.

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