Reader Questions - Smoking Bans, Flags

Hi Kelly,

Must the board get a majority vote of homeowners to make their community common areas non-smoking? If the board got the vote would an amendment have to be added to the CC&Rs or could signs just be posted?

Is this even worth pursuing?

S.C. Lake Elsinore

Dear S.C.,

A rule regulating common area usage can be adopted by the board of directors as an “operating rule” under Civil Code 4340. Under Civil 4355(a)(1), a rule regulating common area usage would (as most rules) need to be adopted with thirty days advance notice to the members. Operating rules cannot contradict the CC&Rs and must be in writing. Operating rules are only good until another board decides to change them, so they are not as permanent as restrictions in CC&Rs. If the association members supported a smoking ban, such a restriction might be approved by the members in a CC&R amendment.

Smoking in attached housing is an increasingly controversial subject, as smoking declines, and associations increasingly address complaints of smoking in common areas, balconies and private patios. Thus far, dozens of California cities have adopted bans on smoking in common areas, and some have completely banned smoking – even inside homes.

If a board is considering adopting a smoking ban, consider “grandfathering” current smokers, and consider having a town hall type board meeting to gauge member interest in the issue of smoking. Any habit, including smoking, should not be a nuisance for other owners.

Thanks,
Kelly

Dear Kelly,

I have a condo that is my vacation home. This summer my neighbors hung flags that looked so patriotic – it was near the 4th of July. One neighbor even hung his Marine flag! A nearby neighbor complained about ‘all the flags’ and requested the board to have them removed. I will NOT remove mine! Have you ever heard of such an un-American situation??? 

Sincerely,

C.K., Solana Beach

Dear C.K.,

The Common Interest Development Act specifically protects the display of the American flag. Civil Code 4705 protects the right of homeowners to display the American flag within the member’s “separate interest” or exclusive use common area. In planned developments, the separate interest is the lot, which means the owner would be able to display the flag anywhere within their property. The “separate interest” of a condominium is the unit, which normally is the airspace (the condominium plan defines what is the unit). A condominium homeowner would not have the right to mount a flag pole on the building roof, but could display the flag from their balcony or patio.

A “flag” under this statute is the flag of the United States of America, in the form of cloth, fabric or paper, displayed from a staff or pole, or in a window, and is not made of lights, paint, roofing, siding, balloons, plant material or any type of building material. Your neighbor’s US Marine flag would not be protected by this law.

Before disputing this issue with your HOA board, first make sure the flag is to be mounted in your separate interest or exclusive use area, and confirm the flag meets the statutory definition. Then, present a copy of the statute to the board, so it is aware that the American flag is protected.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.