Adams Stirling PLC


QUESTION: The board recently prohibited smoking on patios (our tenants enjoy an occasional cigar). Do my tenants have to abide by this rule even though my lease agreement was signed before the rule was adopted?

ANSWER: Yes, the rule applies to your tenants. The lease agreement between you and your tenant affects rights and obligations between you and your tenant, not the association. You can't agree with your tenant to impair the rights of a third party, i.e., the association. The board has the right to adopt rules regardless of anything to the contrary in your lease agreement.

Example. If, for example, loose dogs in the common areas were causing problems, the board could adopt a rule that all dogs be on a leash. Existing pet owners (including tenants) could not exempt themselves from the rule because their dogs "ran free" before the rule was adopted.

Nuisance & Safety Issues. For many, cigar smoke is even more offensive than cigarettes. The nuisance provision found in most CC&Rs allows associations to define what activities are a nuisance and then restrict those activities. In addition, there are safety concerns by owners subjected to second-hand smoke, which is widely recognized as carcinogenic. Accordingly, associations can ban smoking even though patios are "exclusive use" common areas. Your tenants will need to forgo their occasional cigar.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC