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Condo | HOA Lawyers

Smoking Ban Was An Unreasonable Request

Davis v. Echo Valley Condominium Association, No. 17-12475 (E.D. Mich. Nov. 7, 2018)

Summary

The Eastern District of Michigan court held that a smoking ban demanded by a disabled owner was an unreasonable accommodation for purposes of the Fair Housing Act since the measure was not approved by the owners, and the Association was powerless to impose a ban without an owner vote.

The Facts

Plaintiff owned a Unit in the Echo Valley Condominium Association (the “Association”). Plaintiff complained to the Association that her neighbors smoked tobacco. She alleged that she could regularly smell it and that it exacerbated her existing respiratory health conditions.

Plaintiff informed the Association about her medical issues and asked the Association to address the smoking by creating a rule that all smokers in the Association should be required to seal gaps around doors and windows to prevent smoke from escaping. The Association declined to enforce a rule because neither the Association documents nor state law prohibited people from smoking in their homes.  While the Association did not create a specific rule, it did request that owners cover their doors when smoking and install a fresh air system.

One year later (April of 2017) Plaintiff hired an attorney who alleged that the smoking neighbors were creating a public health nuisance, and demanded that the Association place a ban on smoking. When this did not happen, Plaintiff filed suit alleging that the smoking violated the Fair Housing Act (“FHA”) because her respiratory sensitivities qualified her as disabled within the FHA’s meaning and that she did not have the equal opportunity to enjoy living in her unit and breathing without impairment as other residents.

The FHA prohibits discriminating against any person in the provision of services or facilities in connection with a dwelling because of the person’s disability.  “Discrimination” is defined as including a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford the disabled person an equal opportunity to use and enjoyment of a dwelling.

After suit was filed, the Association allowed the members to vote on an amendment to the governing documents that would ban smoking in the building and in each unit. The Association members voted against the amendment.

Holding

The court found Plaintiff’s demand unreasonable because Plaintiff could not show the requested accommodation would confer upon her the use and enjoyment of her home in the same manner as an able-bodied person. Specifically, Plaintiff could not show that a smoking ban would ameliorate her handicap and not just the burden shared by all persons exposed to smoke

The court also found the smoking request unreasonable because it demanded that the Association act without a majority vote from the members, which was required under the governing documents and the Michigan Condominium Act.

Lesson: Nonsmokers and/or people who may be adversely affected by smoke may not be able to force others to stop smoking, especially if their state’s law requires the majority vote of its members to create such a rule.

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