Can Condominium Associations restrict Smoking in the Units?

On June 27, 2005, I posted an article on whether a condominium association can restrict smoking in the common elements. Under Hawaii Condo Law, a Board of Directors normally has more limited ability to regulate conduct in the units when compared to the common elements. Under Section 105(b) of the Recodification, house rules may affect the use of or behavior in units that may be used for residential purposes only to:

1. Prevent any use of a unit which violates the declaration or bylaws;


2. Regulate any behavior in or occupancy of a unit which violates the declaration or bylaws or unreasonably interferes with the use and enjoyment of other units or the common elements by other unit owners; or


3. Restrict the leasing of residential units to the extent those rules are reasonably designed to meet underwriting requirements of institutional lenders who regularly lend money secured by first mortgages on units in condominiums or regularly purchase those mortgages.

Recently a California law firm has suggested that a condominium association can prohibit smoking inside units. The article suggests that nuisance law may give associations the right to regulate smoking in units. Nuisance is the interference with the reasonable use and enjoyment of land. "Unreasonable interference with the use and enjoyment of the unit or the common elements" under the Recodification is substantially same as the definition of nuisance.

My friends, Colorado Condo Attorneys, Tom Hindman and Loura Sanchez have summarized the factors considered by the courts in determining whether a nuisance exists. Their article about smoking and condominium associations states:

Case law instructs that the following factors play into whether a given activity qualifies as a nuisance: 1) type of neighborhood; 2) the nature of the wrong complained of; 3) proximity of those alleging injury; 4) frequency/duration; 5) continuity; 6) damage or degree of injury; and 7) number of complaining parties.

As noted by Tom and Loura, nuisance lawsuits are difficult to prove. In a smoking case, this is made even more difficult because smoking is something that one would normally consider appropriate behaviour in one's own home. Courts will often consider whether something is a traditionally accepted use when determining whether a nuisance exists.

Despite this, a Massachusetts Housing Court jury ruled that a tenants' smoking was so significant and unreasonable that it constituted a nuisance in Harwood Capital Corp. v. Carey. As a result of this recent ruling, the eviction of the smoking tenants was was upheld even though the landlord was aware that the tenants were smokers when the tenancy began. Associations should not consider this a sign that courts would be willing to allow them to prohibit smoking in units. First, the Massachusetts Housing Court decision cannot be cited in any other case because it is a trial court decision. The fact that it is a Massachusetts case only further removes it from Hawaii condominiums. Second, the jury was dealing with the termination of a lease, not an ownership interest. While it is hard to predict how juries will act, it is likely that a jury would treat an owner smoking in his unit differently from a tenant that might have to move to another unit. Third, the ruling does not mean that an association could adopt house rules that contain a blanket prohibition against smoking in the units. Whether smoking in a unit constitutes a nuisance will depend on a variety of factors that would be unique to each situation. The factors described above would have to be considered to determine whether the specific facts present were sufficient to prove a nuisance.

It is possible, however, for associations to adopt By-Laws that would prohibit smoking. In addition, in extreme cases, a particular resident's smoking may constitute a nuisance. Even if a particular situation constitutes a nuisance, an association would need to consider whether it is willing to expend common funds to stop a resident from smoking in their unit. Absent unusual circumstances, an association is not required to file a lawsuit for every violation.

Governor Indicates Veto of Bills Affecting Community Associations

On April 30, 2005, I reported on HB1554 relating to a tax credit for Leased Fee Conversions. The Governor has notified the Legislature that she is considering vetoing the bill. In the message, she stated:

This bill provides a tax credit for one person in that it excludes from taxable income 50% of the capital gains realized, not to exceed $75,000 in the aggregate for all taxpayers. In effect this amounts to a tax credit of $5,438 ($75,000 x 7.25%), providing an incentive for virtually only a single seller to sell their leased fee interest.

On May 3, 2005, I reported on HB1715 relating to sexual orientation and gender identity discrimination in real property transactions. The Governor has notified the Legislature that she is considering vetoing the bill. In the message, she stated:

The bill poses complex issues of application and enforcement given the ambiguous and vague nature of its language and fails to provide the public, renters, buyers, sellers, property owners, or the courts with an objective standard to determine if discrimination has occurred in the housing marketplace.

However, because of a typo in the Governor's message, there is an issue whether this bill may be legally vetoed by the Governor. A related bill, HB1450, relating to sexual orientation and gender identity discrimination in employment was also on the Governor's list of bills she is considering for veto. The related bill does not have the issue about a typographical error in the Governor's notice of intent to veto.

Can Condominium Associations restrict Smoking in the Common Elements?

Under Hawaii Condo Law, most condominium associations can prohibit smoking in the common elements. Hawaii Revised Statutes §514A-82(a)(9) states that the By-Laws must provide for the method of adopting and amending house rules detailing the operation and use of the common elements. Most By-Laws allow the Board of Directors to adopt house rules. That means that the Board can normally adopt or amend house rules regulating smoking in the common elements.

In addition, county ordinances may require associations to prohibit smoking in some of the common elements. The Honolulu smoking ordinance is located in Chapter 41, Article 21 of the Revised Ordinances of Honolulu. The Maui smoking ordinance is located in Chapter 8.20 of the Maui County Code. The Kauai smoking ordinance is located in Section 22-8.2 of the Kauai County Ordinances. The Big Island smoking ordinance is not available online, but is located in Chapter 14 of the Hawaii County Code.

Smoking in prohibited in elevators that are generally open to and used by the public in all counties. Smoking is also prohibited in enclosed or partially enclosed areas within the condominium that are open to residents (excluding the units) in all counties. These areas can include the lobbies, hallways, stairways and waiting areas. The counties define enclosed or partially enclosed areas slightly differently. In Honolulu and Kauai, an area that has one wall and one roof or overhand is enclosed or partially enclosed. In Maui, an area with a permanent or temporary covering including a roof, awning, canvas or overhand is enclosed or partially enclosed. On the Big Island, an area with a roof or overhang and at least two walls is enclosed or partially enclosed. "No Smoking" signs must be placed in the areas where smoking is prohibited by ordinance.

I discuss whether condominium associations can restrict smoking in the units in this article.

Revised 6/30/2005 to add information about Big Island definition of enclosed or partially enclosed and to include the link to the article on smoking in units.

Governor Signs Solar Energy Bill

On April 30, 2005, I reported on HB1017 relating to solar energy devices on townhouses. Act 157 was signed by the Governor on June 24, 2005.

City & County of Honolulu Telecommunications Law

The City and County of Honolulu adopted Ordinance 05-020 relating to telecommunications facilities on City property. The ordinance provides for monthly rent between $1,000.00 and $2,325.00 depending on the square footage to be used for the antenna and the type of antenna. Many condominium associations and community associations enter into licenses with cellular phone companies for the placement of antennas on the property. Under Hawaii Condominium law (HRS §514A-13.4), most association boards are empowered to enter into these telecommunications licenses without owner approval. While the City and County Ordinance does not apply to condominium or community associations, it does provide an independent benchmark for reasonable rent for telecommunications antenna facilities.

Hawaii Federal District Court to Rule on Repeal of the Mandatory Conversion Law

Joe West in his Community Associations Network Daily News cited to an article on the KITV News website about a federal district court case involving the repeal of the Mandatory Fee Conversion law by the City and County of Honolulu by Ordinance 05-001. Video of the news story is located at the KITV website.

The case arose because apartment owners in the middle of the condemnation process were prevented by the City from continuing the process. Although Federal District Court Judge Ezra did not issue his decision, he criticized the City Council saying that it made a "bad mistake by not letting those with pending condemnations go on." He called it "unfair to the apartment owners and highly unwise . . . because the costly litigation will cost taxpayers money."

Governor Signs New Cumulative Voting Law

On April 30, 2005, I reported on SB1798 CD1 relating to cumulative voting and removal. Act 155 was signed by the Governor on June 23, 2005.

CAI Hawaii Chapter's Legislative Update on July 9, 2005

On July 9, 2005, the CAI Hawaii Chapter will be holding a special Legislative Update Seminar at the Japanese Cultural Center from 8:30 a.m. to 12:00 noon. The speakers are John Morris, Gordon Arakaki, Steve Glanstein and myself.

Normally, the Legislative Update Seminar is about an hour and a half lunch session, but in light of the passage of the Recodification, a longer session will be held to discuss the details of the new law that will be effective on July 1, 2006. In addition, the new Bankruptcy law, the solar energy bill, the condominium records bills, the cumulative voting bill, the leasehold conversion tax credit bill, the leased fee interest right of first refusal bill, the sexual orientation and gender identity discrimination bill, the Condominium Association Manager Certification Sunrise Review, the study of naturally occurring retirement communities, the public nuisance law and toughening of the unlicensed contractor law.

The registration fee is $55.00 for member ($45 if postmarked by June 30, 2005) and $65.00 for non-members ($55 if postmarked by June 30, 2005) which can be sent to CAI Hawaii Chapter, P.O. Box 976, Honolulu, HI 96808 along with your name, membership number and payment.

Public Nuisance Law Expanded to Allow Abatement of Prostitution, Obscenity, Gambling and Illegal Drugs

Those of you familiar with my annual legislative update know that I often discuss new laws that can affect Hawaii community associations even though they may not strictly be community association law. A few years ago, the legislature adopted a provision that allowed citizens and organizations to bring an action to abate nuisances involving prostitution, promoting prostitution, obscenity, gambling and illegal drugs. Act 123 amends Part V of Chapter 712 by clarifying that the standard of proof in these type of actions is preponderance of the evidence. In other words, the plaintiff is only requied to show that it is more likely than not that these type of nuisance exists. It also allows the court to issue a protective order to keep the identity of any witnesses secret if there have been prior threats or acts of violence by the defendant. The Act also clarifies the scope of injunctive relief that may be awarded to include enjoining the maintaining, aiding, abetting, or permitting a covered nuisance. The law originally allowed an injunction for causing the nuisance. For those associations that have problems with prostitution, obscenity, gambling or illegal drugs in their project, a nuisance abatement suit is a possibility.

Status of Condominium Legislation

The Governor has signed several bills relating to condominium and community associations:

On April 30, 2005, I reported on SB1348 CD1 and SB1349 CD relating to condominium records. Act 89 and 90 were signed by the Governor on June 2, 2005.

On April 14, 2005, I reported on SB 1336 HD1 relating to the right of first refusal for leased fee interests. Act 91 was signed by the Governor on June 2, 2005.

On April 7, 2005, I reported on SB1345 SD1 relating to Condo court. Act 92 was signed by the Governor on June 2, 2005.

On April 30, 2005, I reported on SB1132 CD1 relating to the Recodification. Act 93 was signed by the governor on June 2, 2005.

What is a notice of proxy distribution?

Under Hawaii Condo Law (HRS §514A-82(b)(4)), if the Association uses Association funds to distribute proxies, it must first post notice of its intent to use association funds to distribute proxies at least 30 days before the distribution. The notice must be posted in prominent locations on the project. Owners have 7 days after posting of the notice to request that their proxy solicitation statement be included with the Association's distribution of proxies. Under Hawaii Condo Law (HRS §514A-83.2(c))the Board or any Board member is prohibited from using Association funds to solicit proxies, although they may respond to the notice of proxy distribution like any other owner. There are a number of misconceptions about the statute:

• The notice applies to distribution of proxies not the solicitation of proxies. The law was changed to apply to distribution of proxies rather than solicitation. If the Association uses Association funds to distribute proxies including enclosing the standard form proxy with the notice of meeting, it must first post the notice.


• There is no legal requirement that the Association distribute proxies. Although it is unlikely that the meeting would meet the quorum requirements, the Association could legally send a notice of the meeting without a standard form proxy. For some associations where everyone is distributing their own proxies, this may not be a problem.


• Since the statute refers to "prominent locations," the notice should probably be posted in at least two locations.


• While the statute provides that those timely responding to the notice can include a 100 word statement to be sent out with the proxy distribution, Associations through their Boards can permit longer statements provided it treats everyone the same. Under the Recodification, the 100 word requirement will change to a single side of an 8½ x 11 sheet of paper.