In Davis v Echo Valley Condo. Assn., a case from the United States District Court for the Eastern District of Michigan, the co-owner sued the condominium association, its managing agent, a neighboring unit owner, and the owner’s tenant under several theories, claiming that the tenant’s smoking was aggravating her asthma and exposes her, a cancer survior, to an increased risk of cancer. On cross motions for summary judgment, the district court dismissed her case in its entirety.
After the co-owner complained, the association installed a fresh air system on her unit’s ductwork to help alleviate the problem. After she filed suit, the association also presented a proposed amendment to the condominium bylaws prohibiting smoking in units, but the proposed amendment did not obtain the needed votes to pass.
The co-owner claimed she was disabled within the meaning of the Fair Housing Amendments Act (federal law) and the Persons with Disabilities Civil Rights Act (Michigan law), and that the association was required to ban smoking in units as a reasonable accommodation of her disability. Without reaching the issue of whether she qualified as disabled, the court held that the requested accommodation was not necessary or reasonable as a matter of law. The co-owner was required to show that the proposed accommodation ameliorates the effects of her particular disability. The court held that she did not make such a showing, because she had previously complained that non-smoking (cooking) odors also exacerbated her conditions, and because she did not show that the proposed ban would help her specifically as opposed to ameliorating the effects of second-hand smoke generally has on all of the residents of the building.
The court also held that the proposed ban was not reasonable because smoking is still legal and because the association did in fact attempt to amend the bylaws, which amendment failed. The association cannot grant the requested accommodation because of the failed amendment.
Regarding her other claims, the court found that she had no private nuisance claim against the association because it had no control over the unit in which smoking was occurring. Regarding the alleged failure to enforce the ban on “annoyance or nuisance” activities and the requirement that units be kept in a “safe, clean, and sanitary” condition, the court considered other cases around the country that concerned second hand smoke, finding that the amount of second hand smoke needed to be excessive in order to violate the condominium bylaws, recognizing that choosing to live in a multi-unit building brings with it the necessity to put up with some inconveniences inherent in living in such close proximity with other co-owners.
While a victory for the association, unfortunately the case does not have any broad principles that would be applicable to all claims that smoking violates either the law or the condominium documents. It is likely this issue will continue to be litigated.
UPDATE: The 6th Circuit Court of Appeals has affirmed the district court’s ruling. The new opinion does an excellent job of explaining when an accommodation is reasonable and when a requested accommodation causes a fundamental change in the character or service of the property.