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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