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We moved into this apartment complex 10 months ago. Never lived in a place like this before and have been surprizingly pleased as punch to be here! My husband and I came to HI (long term non-permanent) from WA state (home owners). We are smokers and came into our leases (went from 1 bedroom to 2 bedroom recently) with signed agreements to not smoke in our units but welcome to use the common smoking areas on the common grounds. This was no problem for us as we never smoked in our home back home anyway even in the coldest weather we took outside.
The place we live now is fenced in with 2 back gates that go out onto the beach that are chained up at 10 pm and reopened at 6 am. It's quite a large complex with 3 large buildings with about 400 or more units combined and only 5 smoking areas inside the gates on the common grounds.
Recently, we been hearing that they are now trying to ban smoking in the common areas. This is due to the fact that a certain owner hates smokers and she has even harrassed a few people that I know of about it on the grounds. Her husband is on the board so no one has ever stood up to her. Some of the other owners tried to knock this new rule down, but somehow (someone said something about an executive order meaning they can do this without the consent of the other owners) it must be true because they posted a notice on the bulletin boards yesterday.
I been talking to people who are very concerned about this and are willing to sign a petition in hopes to get them to reconsider. I'm not sure if we have a legal leg to stand on, but here's my arguement....
1-It will breach contracts between owners' and tenants that have agreed to not smoke in the apartments if they don't allow us to use the smoking areas that have been giving to us.
2-It will "probably" force some renters to smoke inside and I know for a fact this it totally against their true desires to do so because...
3-After the gates are chained at 10 pm we can only then go outside into the street to smoke which will also be a potential dangerous thing to do considering the area of Oahu we are on. There is a reason for the fence around the complex.
I have read the LL/Tenant handbook out here in HI and found this law...
Compliance With Rules - Section 52. The tenant must comply with all rules brought to
the tenant's attention. If the rules are not brought to the tenant's attention at the time the
tenant enters into the rental agreement, and if the rules substantially modify the tenant's
bargain under the rental agreement, the rules do not apply to the tenant unless the
tenant consents to them in writing.
For the rules to apply, they must:
A. Promote the tenant's convenience, SAFETY and general welfare;
B. Preserve the landlord's property from abuse;
C. Promote the fair distribution of services and facilities available to ALL tenants in
general;
D. Reasonably relate to the purpose of the rules;
E. Apply to ALL tenants of the property in a fair manner;
F. Be clear enough to be understood.
Doesn't this new rule seem to go against the state law?
Most of the smokers I know are like me...kind and considerate and we always pick up after ourselves and use the recepticles provided. Many of them, too, are handicaped and use devices to help them get around. I can't understand why they would make such a rule to impose on them!?! I feel this is pure harrassment from this one lady and from what I gather some of the other owner's including those who don't smoke are upset about this as well.
With all this said and done, do we have a legal leg to stand on?
Any advice will be much appreciated...Mahalo!
On hawaii, the smoke free hawaii laws trump chapter 521. a landlord can change a complex to non smoking and make it againt the rules to smoke anwhere in the common areas if they want so long as they provide proper notice.
The LL can not impose the no-smoking policy on the following two items:
1. If your apartment was specifically designated as a smoking apartment and you rented that specific unit because you could smoke, the LL will need to wait until your lease is up befoe imposing the no smoking change.
2. If there is a enclosed structure like a smokers shelter or building and it was marketed to you when you moved in, and you moved in because that structure or physcal place existed and its listed in your leases as an ammenity, they can not take that ammenity away until proper notice is serves which would be 30 days after the last lease expires.
But as you described, if its just a designated smoking area and not an enclosed building for that purpose, they have every right to make it non-smoking. There was a case in Honolulu County and the courts upheld the right to remove smoking areas and ban smoking if they like.
On hawaii, the smoke free hawaii laws trump chapter 521. a landlord can change a complex to non smoking and make it againt the rules to smoke anwhere in the common areas if they want so long as they provide proper notice.
The LL can not impose the no-smoking policy on the following two items:
1. If your apartment was specifically designated as a smoking apartment and you rented that specific unit because you could smoke, the LL will need to wait until your lease is up befoe imposing the no smoking change.
2. If there is a enclosed structure like a smokers shelter or building and it was marketed to you when you moved in, and you moved in because that structure or physcal place existed and its listed in your leases as an ammenity, they can not take that ammenity away until proper notice is serves which would be 30 days after the last lease expires.
But as you described, if its just a designated smoking area and not an enclosed building for that purpose, they have every right to make it non-smoking. There was a case in Honolulu County and the courts upheld the right to remove smoking areas and ban smoking if they like.
This is what I thought that they would have to wait until our leases are up. I just signed my lease starting Feb. this year on this unit which gives me permission to smoke on my lanai or the designated areas. Now, they are saying in the notice also that it will be banned on lanais as well. I have one of the few large lanais and my lease was signed and approved with the office as well as my property manager.
Thanks for response Pacific Flights. I was about to give up finding a non-bias and intelligent response here on CD.
This is what I thought that they would have to wait until our leases are up. I just signed my lease starting Feb. this year on this unit which gives me permission to smoke on my lanai or the designated areas. Now, they are saying in the notice also that it will be banned on lanais as well. I have one of the few large lanais and my lease was signed and approved with the office as well as my property manager.
Thanks for response Pacific Flights. I was about to give up finding a non-bias and intelligent response here on CD.
Wonder if the Lanai can fall under the classification of the enclosed structure. Is it screened and covered?
NO, for the lanai. When they talk about an ammenity for smokers, they are talking about a physical building (such as fitness center is an ammenity, a pool is an ammenity, a parking lot is an ammenity) but smoking areas such as a bench with ashtrays, are not ammenties. Also you have to remember that smoking is absolutely prohibited within 20' of any building no matter what, and since the lanai is within 20 feet of a building, smoking must be prohibited on lanais.
This is interesting as I just read the smoke free Hawaii laws and according to their own words on pg. 16 lines 16-19 says "Nothing in this chapter shall be construed to supersede or in any manner affect a county smoking ordinance; provided that the ordinance is at least as protective of the rights of nonsmokers as this chapter." With this said, I don't believe this trumps a LL/Tenant agreement.
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