Smoking in bed
Realty Times
Written by: Benny L. Kass
15 August 2017
Question:
A contiguous owner in a three level apartment-style condo caused a fire
in her unit while smoking in bed. The ashes ignited bedding while she
was breathing through her medically necessary oxygen tubes. She:
(1)
smoked in bed,
(2) fell asleep, and
(3) was attached to oxygen tubes.
The combination of all three is unsafe. Her normal cigarette smoke
discharge enters units above hers.
How can a condo board deter or prevent such behavior that presents
grave safety risks to all condo residents? Is it possible to declare
the condo a "non-smoking" condo?
Answer:
Smoking—which now includes marijuana—is the hot-button issue
today in almost every community association throughout the country.
You can't stop stupid people from doing stupid things. I hope the
smoker—if she survived—has learned an important lesson, But the
association cannot be the hand-holder of each and every unit owner.
However, you can restrict smoking—of any kind—in the common
elements as well as in the units. While some of my lawyer friends
believe the association can enact a rule prohibiting smoking in the
common areas, I believe that the safe harbor is to get a ByLaw
amendment on this issue. I recognize that it often is very difficult to
enact Bylaw amendments.
To restrict smoking in units, you have to amend not only the Bylaws but
also the Declaration. Such a restriction will be controversial, which
is why the Declaration should be amended. Now would be a good time to
present such a proposal, because owners may be concerned there may be
yet another fire due to smoking.
Case law around the country is very clear: community association owners
are legally bound not only by the legal documents in effect when the
owner took title but also as to any properly enacted amendments to the
legal documents in the future.
Benny L. Kass
Author of the weekly Housing Counsel
column with The Washington Post for nearly 30 years, Benny Kass is the
senior partner with the Washington, DC law firm of Kass, Mitek &
Kass, PLLC and a specialist in such real estate legal areas as
commercial and residential financing, closings, foreclosures and
workouts.
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