Last Wednesday, I wrote about how a bylaw amendment would likely be effective in restricting smoking in the unit, while a house rule would probably not be effective. I do not normally respond to questions emailed to us from our blog or website. The reason for this is that we want to avoid creating an attorney-client relationship which could create a conflict with one of existing clients and because it is impracticable to respond to all the questions we receive. However, in this case, we received a couple of questions on this topic, including one from an existing client: why would a court enforce a bylaw amendment restricting smoking in the unit but not a house rule. Historically, courts have given more deference to bylaw amendments than house rules. This is because generally, house rules are adopted by the Board while bylaw amendments are adopted by a super-majoirty of the owners (67% in Hawaii). In addition, because the bylaws are recorded as public records, courts given them more weight.

This judicial preference for bylaw amendments is reflected in the a case last year in which a Colorado court upheld a bylaw amendment prohibiting smoking in the units. Colorado attorneys Tom Hindman and Loura Sanchez were involved in this case and write about it in their web site.