Recently, a jury of the Orange County Superior Court in Santa Ana, CA returned a verdict holding a local condominium homeowners’ association responsible for second hand cigarette smoke exposure to a condominium resident owner. In the lawsuit, Chauncey v. Bella Palermo Homeowners’ Association, et al., Orange County Superior Court Case No. 30-2011-00461681, the plaintiff homeowners repeatedly complained to the homeowners’ association and the property manager about second hand smoke from the tenants in the adjoining unit. When the association failed to take steps to address the situation, plaintiffs filed suit against the association, the management company, the landlord of the adjoining unit and two of the rental tenants in the unit. In returning a verdict in favor of the plaintiffs, the jury found all of the defendants negligent and also found the association in breach of the CC&Rs for the project under a breach of contract theory, despite the CC&Rs not specifically prohibiting smoking at the project. The CC&Rs did contain a ‘nuisance’ provision and other provisions requiring the association to ensure the owners were entitled to the ‘quiet enjoyment’ of their unit. It is believed this is the first jury verdict of its kind in California and, perhaps, the nation.
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