Makower Abbate Guerra Wegner Vollmer Successfully Defend Case of First Impressions in Federal Court

Nov 8, 2018 | Fair Housing Issues

In a case of first impression, the Eastern District of Michigan held that a request to ban smoking within Units is not a reasonable request under the Fair Housing Amendments Act. The Plaintiff in Phyllis Davis v. Echo Valley Condominium Association et al., Case No 17-12475, sought to compel the Association to ban smoking within a neighboring unit, claiming that the smoke affected her asthma. Ms. Davis’ unit shared a common hall and stairway with the smoking unit. Ms. Davis, a co-owner, argued that prohibiting smoking in the neighboring Unit was a reasonable accommodation under the FHAA and Persons with Disabilities Civil Rights Act of Michigan. The Association took the position that it lacked the authority to ban smoking in Units by rule; that such a ban required an amendment of the condominium documents. During the course of litigation, the Association attempted a smoking ban amendment but it failed. The court agreed that such a restriction required an amendment of the condominium documents, finding that, “Imposing a smoking ban on all Echo Valley co-owners, the effect of which would be to restrict them from engaging in a lawful activity on their own property, cannot be accomplished in this case without a violation of existing law. For that reason alone, Davis’s accommodation demand is not reasonable.”

Ms. Davis also argued that smoking within a Unit constituted a nuisance and annoyance that required enforcement action by the Association. Ms. Davis presented only her own complaints as evidence that smoking rose to the level of an actionable nuisance and annoyance. With regard to this argument, the court held: “She mentions elsewhere in her briefing that other residents have complained about smoking at Echo Valley, but she has not presented that information in such a way that would give the Court a basis to depart from the reasoning of other courts. General observations about smoking at hotels or other residences do not establish that smoking at Echo Valley is so unreasonable as to trigger the Board’s enforcement obligation under the bylaws.”

Benjamin J. Henry of Makower Abbate Guerra Wegner Vollmer served as co-counsel for the Association in defending this case.