The Illinois Appellate Court’s ruling in Carey v. The 400 Erie Condominium Association, a recent Rule 23 opinion of the First Appellate District Court, provided guidance for handling smoking nuisance cases in condominiums, emphasizing that rules may permit smoking within units as long as it does not cause nuisance or unreasonable disturbance to others.

The court outlined the standards for proving a breach of fiduciary duty by the board, requiring objective evidence of nuisance and considering the association’s efforts to investigate and mitigate complaints.

This decision underscores the importance of objective standards in evaluating smoking nuisances and highlights the board’s responsibility to balance the interests of all residents, including both smokers and non-smokers, while maintaining fair and consistent enforcement of the building’s rules.

Work with your association’s attorney to draft a formal smoking policy that reflects your community’s needs, addresses consistent rule enforcement, and follows legal requirements.

Introduction: Carey v. The 400 Erie Condominium Association

On Friday, March 29, 2024, the Illinois Appellate Court, First District (Chicago and Cook County District) issued a lengthy 41-page Rule 23* opinion Carey v. The 400 Erie Condominium Association.

The opinion provides Board Members and property managers with additional direction and suggestions when it comes to dealing with a very common and problematic situation: violations of rules that allow smoking within a unit.

In a case that took more than seven (7) years to reach an Appellate Court decision, the Court reaffirmed several well-established legal principles and provided some direction for Boards and managers to take into account and follow in these smoking cases.

Rules and Regulations: Carey v. The 400 Erie Condominium Association

In the Carey case, the Association had a very typical smoking rule in their rules and regulations. The rule stated “smoking is permitted only in units, and only if it does not create a nuisance or unreasonable disturbance to others.“  Therefore, the building explicitly permitted smoking, but only within units of the building as long as the smoke did not “create a nuisance or unreasonable disturbance to others.“ Again, this is a very common rule in most Associations unless they have become a no smoking building altogether.

In Carey, the complaining unit owner (the complainant) lived next to an owner who allegedly violated the smoking rule and created nuisance or unreasonable disturbance for Carey (alleged violator). The complainant filed a lawsuit against the alleged violating unit owner (for individual nuisance) and also the Association and its Board of Directors claiming that the board breached its fiduciary duty to the complainant by mishandling their complaints concerning alleged secondhand, tobacco, and marijuana smoke infiltrating their unit from the alleged violating owner’s unit.

In addition to the Rules and Regulations regarding smoking in units, the Association’s Declaration also contained the familiar catch-all provision that “no unlawful, noxious, or offensive activities shall be carried on in any unit or elsewhere at the building, nor shall anything be done therein or they’re on, which shall cause or constitute a nuisance, or which shall, in the judgment of the board, cause, unreasonable noise, danger, or disturbance to others. Residence and unit owners must not permit or participate in activities, in the units or common elements that will unreasonably, disturb or interfere with the rights and comfort of other residents or unit owners.”

Legal Considerations: Carey v. The 400 Erie Condominium Association

The Appellate court highlighted the clear provisions in the Illinois Condominium Property Act (the Act), which specifically states that in performing their duties, the officers and members of the board shall exercise the care required of a fiduciary of the unit owners. Moreover, under the Act, a Board may enact and amend rules and regulations covering the details of the operation and use of the property, and such rules must be objective, even handed, nondiscriminatory, and applied uniformly.

In order to prove a breach of fiduciary duty on the part of the Board, the Appellate Court laid out the burden for the plaintiff/owner.  A complaining unit owner must allege: (1) a fiduciary duty on the part of the defendant existed; (2) a breach of that duty; (3)  damages resulting directly from that breach; and (4) the proximate (or direct) cause between the breach and the damages. The Appellate court carefully construed the language of the Association’s Smoking.

In Carey, the complainants argued that the alleged smoke infiltration created a “unreasonable disturbance” contending that they are “not required to meet the legal definition of a nuisance” because the rule applies to both.

Legal Definitions: Carey v. The 400 Erie Condominium Association

One of the biggest problems in smoking cases is what exactly is “unreasonable.” Some people are ultrasensitive to smoke, others are not.  So, what standard applies? In Carey, the court noted that the rules and regulations did not define the term “unreasonable.” But when a term is not defined within a document, the Appellate Court will give the term its plain, ordinary popular meeting and even look to its dictionary definition, which is exactly what the Appellate Court did.

The Appellate Court cited Webster’s dictionary in defining unreasonable as “beyond what can be accepted” and “clearly inappropriate, excessive or harmful in degree or kind.”  Applying the definitions unacceptable disturbance, or a disturbance, which is clearly inappropriate, excessive, or harmful.”

The Appellate Court found that this interpretation suggests that the measure of whether a smoking related disturbance is unreasonable is actually an objective standard, not a subjective standard, which has often been the understanding of Boards and property managers.

Court Decision: Carey v. The 400 Erie Condominium Association

The complainant acknowledged that their complaints undeniably arose from a personal, subjective view of the impact smoke infiltration had on their health, well-being, and ability to enjoy their unit. The complaining unit owner, however, contended that there was objective evidence of unreasonableness, because the violating owner admitted that she and others smoked in her unit and on the balcony.

The Appellate Court ruled that merely alleging that the violating unit owner admitted to smoking was simply not enough. There was no evidence showing that the smoke infiltrated their unit or had originated from the alleged violating unit owner’s unit. There was also no evidence that the infiltration was of such a high level so as to constitute a disturbance, that is unacceptable, or clearly inappropriate.

The Appellate Court acknowledged that the Board had a fiduciary duty to a non-smoker when the objective evidence was clear. However, the Board also had a fiduciary duty to the owner who smoked since the rules specifically allowed smoking in the unit.

This case also demonstrated that management and the Board took several steps in an attempt to resolve the situation and mitigate the alleged nuisance.

• The association undertook significant efforts to investigate and address the complaints.
• The property manager met with the unit owners on both sides of the complainant unit.
• The property manager arranged for inspections of the unit owners on both side of the complainant’s unit.
• The property manager had a maintenance worker seal open areas around pipes between the units.
• The association even sent letters to residents requesting that smokers use air purifiers to try to mitigate the smell.
• The Court even noted that the property manager reached out to other associations to learn about the process of becoming a smoke-free building and sent a survey to all the building residents to solicit interest in changing to a smoke-free building (but did not garnish much interest).

As in most of these types of cases, the complainant continued to contact management and the Board, alleging that the violating unit owner’s smoke was emanating from their unit.

The Appellate Court specifically stated that the complainant seemed to suggest that any and all grievances they made should have been immediately taken as true and proceeded to a hearing without the need for any verification. However, had the association proceeded as the complainant requested and issued a notice of violation every time there was a complaint and without independent verification, the association would have been violating its own policies, possibly even breaching its fiduciary duty to the alleged violating owner to uniformly enforce any alleged violations against her.

In light of all of these steps, the Appellate Court held that the association acted in a reasonable manner and that there was no evidence to support the claim that the association breached its fiduciary duty.

In Conclusion: Carey v. The 400 Erie Condominium Association

This Appellate Court decision is unique in the fact that it is very lengthy (over 40 pages) and covers more than seven years of litigation, along with years prior leading up to the initiation of the lawsuit. The decision provides some important direction and suggestions for property managers and board members who often have to deal with this identical situation in their community association.

Do not hesitate to contact our law firm if you are a board member, property manager, or community leader with questions about smoking rules and regulations in your association. As this case exemplifies, there are a variety of practical and legal considerations including fiduciary duty, association management, unit owner communication, community policies, and more.

Please call 855-537-0500 or visit www.ksnlaw.com.

Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.

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