Hawaii Condo Law

If you haven’t seen it yet, Ian Lind has an article in the Honolulu Weekly “Honolulu Diary” sectionentitled, Smoke gets in you lives about the State Department of Health’s and the Coalition for a Tobacco Free Hawaii’s initiative to prevent smoking in living units. I’ll post a link to the article once it’s posted on the Honolulu Weekly website.

Updated 12/31/2007: Added link to article and removed comment that I’ll post a link once it’s available.

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.

On Wednesday, I posted an updated article on whether associations can restrict smoking in the units. Coincidentally, the City of Belmont, in the South Bay area (half way between San Francisco & San Jose) adopted a smoking ordinance a few weeks ago, that among other things, prohibits smoking in individual units and the patio/yard areas of multi-unit residences (apartments, condominiums, and townhouses) which share common floors and/or ceilings with at least one other such unit. The new law will become effective next month on November 2, 2007, but the provision prohibiting smoking in units of multi-unit residences would not become effective until 14 months thereafter or until the legal occupants vacate the unit. The San Jose Mercury News has identified this law as the first that prohibits smoking in one’s own home.

In addition to prohibiting smoking in units, the law establishes non-consensual exposure to second-hand smoke as a nuisance and trespass. This provision, if valid, would allow individuals to sue for nuisance without having to prove the the level of second-hand smoke was an unreasonable interference of real property rights.

There has been a lot of furor about the new law and it points to the difficulty of regulating smoking in a unit whether by an association or the government. The concept of “my home is my castle” clashes with the ability of governmental and associations regulating conduct for the collective good. I anticipate that more laws similar to the Belmont California ordinance will be considered by other city councils and state legislatures. Already several of our community association clients have adopted bylaw amendments restricting smoking in all or part of the units.

Yesterday, I updated an article that was originally posted on June 27, 2007. Yesterday’s article was 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 Hawaii Revised Statutes §514B-105(b), 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.

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.

I was asked to update some of my prior articles about smoking. Here is a revised version of this article from June 27, 2005.

Under Hawaii Condo Law, most condominium associations can prohibit smoking in the common elements. Hawaii Revised Statutes §514B-104(a)(1) states that Associations have the power to adopt and amend rules and regulations (ofter called house rules). Most condominium bylaws 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 and state laws 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 located in Article 4 of Chapter 14 of the Hawaii County Code. The Hawaii State Smoking Law is located in Hawaii Revised Statutes Chapter 328J.

Smoking is 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. In addition, under the statewide smoking law, smoking is prohibited at least 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.

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

10/03/07: added link to the article on smoking in units.

Ian Lind has been writing about Hawaii and politics for many years now. In the last few years, he has written a number of articles about condominium associations. I first met Ian when he was the Executive Director of Common Cause/Hawaii and I was a volunteer. As an aside, other people involved with Hawaii condominiums that were affiliated with Common Cause/Hawaii include CPA, Jonathan Carr, attorney Marie Riley and architect Jim Reinhardt.

In his September 18, 2007 article, he writes about a legal advice column in the Star Bulletin about grandfathering pets. Ian correctly points out the mistake in the column. It is not up to each condominium association to implement the rules and guidelines regarding grandfathering of pets. The law requires that condominium associations permit unit owners to replace their pets upon the death of the pet as long as the owner lives in the project. Those of us that have been around for a while will remember that this law was one of the ones that was pushed through the legislature by former Senator Steve Cobb.

In honor of Flag Day, I wanted to remind you that community associations are subject to the Freedom to Display the American Flag Act of 2005. As explained in my July 25, 2006 post, associations are limited in its ability to prevent a member of the association from displaying the flag of the United States on residential property to which the member owns or has a right to exclusive possession or use. A member’s right to display the flag is not unlimited, however. You may wish to review the July 25, 2006 post.

Yesterday, Hawaii’s Smoking Law became effective. For the most part, provisions in each of the county ordinances have provided similar if not greater restrictions on smoking. One difference, however, is that the State law prohibits smoking outside the entrance, windows and ventilation intakes of partially enclosed areas where smoking is prohibited.

Coincidentally, this week a Colorado judge has upheld an association’s authority to adopt a bylaw amendment to prohibit smoking in the units. Please note that section 7 of the new smoking law specifically exempts from the provisions of the smoking ban private residences unless the residences are used for health care, child care or adult day care. Therefore, absent unusual circumstances, an association ban on smoking in the units would require a similar amendment to the association’s bylaws.

On July 24, 2006, President Bush signed HR42, the Freedom to Display the American Flag Act of 2005. This Act limits the ability of community associations to prohibit members from displaying the U.S. flag on the member’s unit, lot or exclusive use or possession area. The law states that community associations:

may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

However, community associations are permitted to regulate the display of the U.S. flag. First, the law does not protect the flying or displaying of the flag in a manner inconsistent with federal law relating to the flag. Some of the provisions of the federal law relating to flags include:

• 4 U.S.C. §6(a) provides that the U.S. flag be flown from sunrise to sunset unless properly illuminated during the hours of darkness.
• 4 U.S.C. §6(c) provides that the flag should not be displayed on days when the weather is inclement unless an all-weather flag is used.
• 4 U.S.C. §7(c) provides that no flag should be displayed higher than the U.S. flag (if on the same level, it should not be placed to the right of the U.S. flag). It also provides that no other national or international flag should be displayed in a position of superior prominence or honor to the U.S. flag.
• 4 U.S.C. §8(a) provides that the U.S. flag should never be displayed with the union down.
• 4 U.S.C. §8(c) provides that the flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.
• 4 U.S.C. §8(e) provides that the flag should never be displayed in such a manner as to permit it to be easily torn, soiled, or damaged in any way
• 4 U.S.C. §8(g) & (i) provides that the flag should not have any marks, insignias, designs or pictures on it or be used for advertising purposes.
• 4 U.S.C. §8(k) provides that the flag should not be displayed, but properly destroyed if it is no longer a fitting emblem for display.

Therefore, community associations can require that members comply with these federal laws relating to display of the flag. For instance, this means that an association could regulate the appearance of the flag.

In addition, the law permits community associations to establish reasonable time, place, or manner restrictions necessary to protect a substantial interest of the association. There is a fair body of law (primarily in free speech cases) about what constitutes reasonable time, place and manner restrictions. It is likely that an association could establish appropriate times for the display of the flag, appropriate locations, and size limitations as reasonable time, place and manner restrictions. Community associations will need to adopt rules in order to regulate the display of flags.

On December 1, 2005 and December 2, 2005, I wrote articles about comfort animals. At that time, I noted that the 9th Circuit was likely to rule whether a comfort animal must be specially trained to ameliorate a disability. The Hawaii Federal District court ruled in Prindable v. AOAO 2987 Kalakaua, 304 F.Supp. 1245, 2003 U.S. Dist. LEXIS 23744 (D. Haw. 2003) that in order for an animal to be covered by the reasonable accommodation provisions of the Fair Housing Acts, the animal must be individually trained to ameliorate the effects of the disability. While on appeal, the owners’ unit was foreclosed upon for failure to pay maintenance fees. The owners of the unit had been permitted to keep the animal temporarily until they were removed the unit after the foreclosure. The 9th Circuit Court ruled in Dubois v. Association of Apartment Owners of 2987 Kalakaua that because the owners had never been prevented from having the animal, there was no valid claim of a Fair Housing violation. Although the Hawaii District Court decision was affirmed, the 9th Circuit did not address the issue of an association’s obligations with respect to comfort animals. At this point, the law in Hawaii appears to be the District Court’s decision that a comfort animal must be specially trained to ameliorate a disability.

Note: Due to this recent decision, the planned posting on the applicability of the Recodification to existing condominiums will be delayed a short time.