Hawaii Condo Law

Pursuant to HRS §514B-137(a), the Association is responsible for the operation of the property. What is operation of the property. The condominium property act defines it very broadly in HRS §514B-3 as follows:

“Operation of the property” means the administration, fiscal management, and physical operation of the property, and includes the maintenance, repair, and replacement of, and the making of any additions and improvements to, the common elements.

One of the changes in the law is the adoption of terms from the Uniform Common Interest Ownership Act (UCIOA). UCIOA is a model act that has been adopted in some form by 17 states. The new law follows UCIOA’s use of the term “unit” rather than “apartment,” in part to reflect that condominium units are not only apartments. They can be parking stalls, boat docks, commercial spaces, warehouse spaces, etc. Hawaii Revised Statutes 514B-3 definition is:

“Unit” means a physical or spatial portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described in the declaration or pursuant to section 514B-35, with an exit to a public road or to a common element leading to a public road.

Last month, I did a seminar for the Hawaii IREM Chapteron the new condominium law and how it is different from the old law. I’ve previously wrote about the process of opting-in more fully to the new condominium law. That article and those referenced in the article explain some of the major differences between the old law and new law. However, in the next few articles, I will discuss some of the other differences.

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.

This post lists the bills and resolutions of interest to community associations that passed this year.

Ordinance 07-2 - Notification of Dog Bites — This law requires medical service providers and veterinarians to report incidents of serious bodily injury from a dog bite to the Honolulu police. The police are required to forward the incident report for investigation by the animal control contractor (currently the Hawaiian Humane Society). The animal control contractor is required to make a determination whether the dog is dangerous.

This law does not directly affect community associations since it is unlikely that community associations, their directors or employees would be required to provide the notice. However, since incidents with dogs is a growing problem for community associations, the reporting requirement may result in actions to remove dogs from communities.

Ordinance 07-3 — Unsafe Motor Vehicles Near Schools — This law prohibits the parking of dangerous vehicles on public streets in a school zone. A dangerous vehicle is: (a) one with an exterior part that is sharp, pointed or jagged; (b) a broken windshield or window; or (c) an unlocked or open door or window that would permit access to sharp, pointed or jagged parts.

Once again, this law does not directly affect community associations, but it may affect parking by association residents on public streets.

Ordinance 07-10 — Real Property Tax Classifications for Condominiums — This law eliminates the distinction for real property tax purposes between improved residential, unimproved residential and apartment uses. Over the years, the City and County of Honolulu have been adjusting residential real property tax rates so that the rates for condominiums are now the same for other improved residential property. For the fiscal year ending June, 2007, the tax rate for $1,000 net assessed value of land was $3.59 for both improved residential and apartment properties. This new law finalizes the process of equalizing the tax rates and creates a single tax rate for all residential property beginning with the tax year beginning July 1, 2008. We anticipate, however, that for the tax year commencing on July 1, 2007 that the tax rate for condominiums and improved residential property will be the same.

Ordinance 07-22 — Adoption of 2003 Edition of the Uniform Building Code — This law adopts the 2003 Edition of the Uniform Building Code. The law becomes effective on September 18, 2007. Community Associations making modifications to their projects after that date may need to comply with the new edition of the building code.

Ordinance 07-29 — Sewer Rates — This law adopts new sewer rates for the City and County of Honolulu. The new rates will be effective on July 1, 2007.