Can a condominium association ban smoking in an individual unit? J D Supra Business Advisor
by Jennifer O'Reilly
02 March 2013
Published in Community Associations Institute (CAI) Monthly Digest -
February 2015
States, cities and businesses are banning smoking in more and more
places. Can condominium associations do the same by prohibiting
residents from lighting up in their own homes? Many American
smokers may think that’s unconstitutional, illegal or just plain
“un-American.” But they’d be wrong from a legal perspective and
surprised to know that smoking restrictions are becoming more and more
common. If an association uses proper protocols and fairly basic
application of state property laws, owners who’d like to smoke in
their units may soon discover their fellow unit owners can stop them
from doing what they increasingly can’t do any place else.
Courts have repeatedly held throughout the U.S. that homeowners give up
certain rights when they decide to live in a condominium
association. Condominiums often prohibit pets, loud music,
barking dogs or dirty living conditions. Given smoking bans in
public places and the proven harm of second hand smoke, condominium
associations are following suit by banning smoking in individual units.
Associations often pass specific provisions or rules that ban residents
from lighting up in their units. Others rely on their
declarations, most of which contain a “nuisance clause” prohibiting
unit owners and occupants from engaging in any activity that would
affect another owner's use and enjoyment of their unit or that would
otherwise constitute a nuisance. Whether smoking within one's own unit
and the resulting secondhand smoke rises to the level of a nuisance
will depend greatly on the particular details, and, in some cases, the
state or federal law. A nuisance is an unreasonable, unwarranted
or unlawful use of one’s property that invades the use and enjoyment of
another’s property. However, in determining whether a particular
annoyance constitutes a nuisance, a court will use an objective
standard to consider the effect of the annoyance on the ordinary
reasonable person, rather than an effect on a person who is abnormally
sensitive. 1
Condominium boards routinely use a similar standard to determine
whether a nuisance exists by asking whether the average person residing
in the building would find the conduct complained of a nuisance. There
is no measurement to determine how much or how often secondhand
smoke must seep into other units to qualify as a nuisance. Most
associations must rely on the facts of a specific situation to
determine whether a nuisance exists. An occasional whiff of
secondhand smoke--by one or perhaps even all residents--probably won't
create enough of a nuisance to warrant action on the part of the Board.
Likewise, a demand from a unit owner who simply doesn't like smoking
may not provide a sufficient basis for declaring smoking to be a
nuisance. But continuous, repeated exposure to secondhand smoke by
several unit owners or smoke that cannot be curtailed by reasonable
means will probably constitute a nuisance. In determining whether smoke
constitutes a nuisance, an association should focus on the frequency
and severity of the infiltration, the nature of the building
construction and the number of residents complaining.
If an association wants to ban smoking, some methods are more airtight
than others. One method is to have the board of directors pass a
rule; another is to amend the declaration. However, while rules
are subject to judicial review for reasonableness if challenged by an
owner, declaration amendments are more likely to withstand challenge
because courts can review those only for whether they’re
unconstitutional or contrary to public policy.
Many condominiums have already implemented smoking bans by amendment to
their declarations. In Minneapolis, an upscale 118-unit condo banned
all smoking within the building as well as on private balconies.
Similarly, a New York City cooperative association enacted a complete
ban on smoking for new residents after receiving complaints that a
smoking ban limited to only the common elements was not enough to
prevent the transmission of smoke from one unit to another unit.
Chicago area condominiums are no exception to this growing trend. 1418
N. Lake Shore Drive and 2626 Lakeview Condominium Association
amended their declarations to prohibit smoking in the common elements
and inside the units.
Although there is little history of any smoking ban being challenged, a
Colorado condominium ban was subject to judicial review. In 2005,
the Heritage Hills Condominium Association approved an amendment to its
governing documents, prohibiting smoking in individual units. 2 The Colorado court concluded
that the smell of second-hand smoke and
its seepage into the unit of a non-smoker represented a nuisance,
justifying the condominium association’s approval of a declaration
amendment banning smoking in all units. 3 The smokers challenged
the ban arguing that it interfered with their right to conduct legal
activities within their home. The court determined that the smokers
didn't have a constitutional right to smoke and ruled the association's
smoking ban was not contrary to public policy, stating that courts have
not specifically extended the protections of the Fourteenth Amendment
to a fundamental right to smoke, especially when the owners’ private
activities are negatively impacting the others in the community they
chose to join. The court acknowledged that smoking is not illegal, but
likened it to “excessively loud noise.” Like noise, the court said,
“smoke can’t be confined within a unit and can create a nuisance for
others that the association had the authority to regulate.” It
concluded that the secondhand smoke, whether the smoke itself or just
the odor, constituted a nuisance as defined by the condominium
association's declaration and the amendment was not unreasonable,
arbitrary or capricious. It also noted that the association had
followed the proper procedures for amending its declaration and that it
had tried to address the problem by other means before enacting the
smoking ban.
Although the Colorado decision does not bind other courts, it is
significant for a couple of reasons: it was one of the first to deal
specifically with smoking within a condominium and the first to affirm
the right of a condominium to curb smoking within an owner’s home.
Only time will tell whether other courts will follow suit with the
Colorado decision and uphold smoking bans in an individual’s condo
unit. Without doubt, however, if a smoking ban does face legal
challenge, courts will look at whether the association acted reasonably
in enacting the prohibition. Associations interested in banning
smoking in individual units must abide by the proper adoption procedure
- whether it is by rule or declaration amendment.
1.
Kolstad vs. Rankin, 179
Ill.App.3d 1022 (4th Dist. 1989).
2.
Suave v. Heritage Hills 1
Condominium Owners Association, No.
06CV1256, Colo. Dist. Court, November 7, 2006.