Smoking may be the next big issue in the Association world. You and you family reside in your condominium unit and have elected not to smoke for your health and the health of your family. However, some of your neighbors are smokers and choose to smoke inside of their Unit. The smoke from their Unit transfers through the walls and the ventilation system into your Unit, remaining in the walls and carpeting of both your Unit and the building. You may not even smell the smoke entering your Unit, but are subjected to the adverse health effects of secondhand smoke.
Many municipalities and States have banned smoking in public places. Multi-million dollar lawsuits have been settled with major cigarette companies. The Walt Disney Company banned cigarettes from being portrayed in all of its future family-related films. Scientific research has shown that smoking as well as secondhand smoke is bad for your health. Secondhand smoke contains more than 4000 chemicals and more than 50 carcinogens, and kills thousands of people every year. It adversely impacts the health of children and people with pre-existing health conditions.
The Board of Directors of an Association has a fiduciary duty to look out for the health, safety and welfare of its residents. Often times, the Board is unclear as to its authority in a situation where Owners complain of smoke entering their Unit from another Unit. The Board has the authority to adopt a rule to restrict smoking in the Common Elements, as that area is under the direct control of the Board of Directors as prescribed under the Association’s Declaration and most State laws. However, often times smoke escapes into the ventilation system and hallways and into the home of another resident.
Many Declarations have a common provision called a ‘nuisance’ provision that states that no noxious or offensive activity or annoyance shall be permitted. Allowing the smoke from a Unit to enter another Unit or the Common Elements may be considered a violation of this ‘nuisance’ provision, and the Owner can receive a fine. Further, the Board can request that the Owner take remedial measures to prevent the escape of smoke from his or her Unit, by utilizing a smokeless ashtrays or installing a ventilation system.
As more scientific evidence is gathered showing the negative impact of secondhand smoke and Owners become more litigious, many Associations will consider becoming nonsmoking or ‘Smoke-Free’ buildings altogether. Although there is no case law on point, comparable Association related Appellate court cases suggest that an Association may adopt an amendment to its Declaration to prohibit smoking in both the Common Elements and the Units of an Association. An amendment must be approved by a supermajority of the Owners. Such an amendment would ban smoking in the Association, and even require those Owners who currently smoke to cease smoking in their Unit. Violations of such a restriction may result in a fine, and if such a violation continued, the Board could seek a court order to compel an Owner not to smoke in his Unit or even force a judicial sale of the Unit. These are drastic measures, but the health of the community and its residents is something that should be paramount to the Board.
A ‘no smoking’ restriction may initially be difficult to enforce, but education and explanation regarding the adverse health impact on individuals should ultimately lead to an understanding amongst the residents. A community should balance the residents desire to enjoy their home with the health, safety and welfare of its residents.
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