Federal Appeals Court Tells Condo Association to Smoke ‘Em if You Got ‘Em
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On December 19, 2019, the United States Court of Appeals for the Sixth Circuit issued an opinion for publication affirming the United States District Court for the Eastern District of Michigan’s decision to dismiss a co-owner’s claims for Fair Housing Act (FHA) violations, breach of the Bylaws, and nuisance against her condominium association stemming from tenants smoking in a unit located in her building.[1] It is important to note that smoking had always been allowed in the units at the condominium. The Bylaws of the condominium do not prohibit smoking in the units and do not mention smoking at all.

The co-owner had made several complaints to her condo association and to the owners of the unit where the smoke was originating. She claimed she had asthma and that the smoke greatly aggravated it. The association attempted to resolve the issue by rerouting the air source to her unit from the basement to the outside and also asked the co-owners of the unit where the smokers resided to further insulate their door to the common hallway. Regardless of these measures, the offended co-owner requested as an accommodation that there be a complete smoking ban in her unit. The association declined to make that accommodation and the co-owner eventually sued the association, the condo’s management company, and the co-owners owning the unit where the smokers resided. The co-owners owning the unit where the smokers resided sold their unit during the pendency of the lawsuit and were dismissed from the case.

Ultimately the United States District Court for the Eastern District of Michigan dismissed the case. The co-owner appealed to the United States Court of Appeals for the Sixth Circuit, which affirmed the decision to dismiss the co-owner’s claims. It held:

1) There was no violation of the FHA because the request for a complete smoking ban in the co-owner’s building was a “fundamental change” in the association’s policy on smoking. It was not a “moderate adjustment” to a challenged policy. Therefore, it is not a “reasonable accommodation” under the FHA.

2) That the association did not breach the Bylaws because: the Bylaws, as restrictive covenants are resolved in favor of the free use of property; the Bylaws don’t specifically address smoking and the association had long allowed smoking in units; and the co-owner chose to purchase a condo in a complex that allowed smoking.

3) That there was no actionable nuisance claim against the association, because the association didn’t possess or control the unit’s in the co-owner’s building.

The full text of the opinion can be read here:

http://www.michbar.org/file/opinions/us_appeals/2019/121919/71976.pdf

If you are a co-owner or are on the Board of condominium association and have a question about smoking in your complex or unit, please give us a call at (248) 349-6203.

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[1] Davis v Echo Valley Condo Ass’n, __ F3d ___ (CA 6, 2019).