Smoking at the Condo - A Cloudy Issue

“Giving up smoking is easy … I've done it hundreds of times.”

- Mark Twain

Even smokers understand how terrible a habit it is. It smells; clothes smell; breath smells; it just stinks. But it's a hard habit to break. My Dad, who was a recovering alcoholic for some 20+ years when he died, and a non-smoker for about twenty years as well (having a heart attack was his way of stopping), said that he never missed alcohol, but he never stopped craving a cigarette.

In condominium associations, of course, it can be worse because of the proximity in most associations of the units, either a unit next door, or one above, or below … or both.

The two sides are framed by different, but related, arguments. One side says second hand smoke destroys their quality of life; the other says smoking is a legal activity and see their unit/home as the last place they are allowed to light up. And both have legitimate points.

The solution used to be just to try and outlaw smoking at the condominium. (One association outlaws smoking everywhere except outside, in the parking lot, in a car, with the windows rolled up.) That can be tough to do. Boards of directors can make a rule, but some courts (not in New Hampshire as we simply don't have a lot of condominium case law, being a relatively small state) have taken a dim view of making a rule about what can happen inside an owner's unit. Why? If a board is comprised of five person or three persons? In such a situation as few as two or three person in a mid- to large-size condominium association can tell you what you can or cannot do in your home. Courts have acted cautiously in giving such broad power to so few.

On the other hand, life in Condo World is governed by the contract that is the Declaration and Bylaws. Courts have upheld anti-smoking provisions that have passed by the required, and much larger, majority of at least 2/3rds of the voting interests of all owners. If it is the will of the people is to outlaw smoking, then that is the law.

As many association know, however, getting 2/3rds of the Owners to vote on anything can be a bit tough.

Solution?

Just as most associations have provisions that allow a board of directors to step in if there is too much noise coming from a Unit, so too can a board of directors create provisions that can regulate smoking activity if it seeps into the common area. (Make no mistake. If smoke enters a unit from another unit, it has passed through the common area, such as a wall or a vent. In turn, this situation would allow a board of directors to adopt rules preventing what an owner does in his/her unit from escaping the unit.

At least one association, in Tennessee, has passed a rule requiring owners who smoke to purchase a charcoal filtration system and provide proof of purchase. The association also instructed residents that they may need two or more filtrations systems depending on the size of their unit, and the filters would need changing often or the owner/smoker would suffer the potential consequences of the Board stepping in.

Associations can, and have, set aside a portion of the common area as a designated smoking area. (Courts have apparently not thought of this as segregation. It seems like corralling people, one step short of discrimination.)

Others have set provisions such as no smoking within 20' feet of any unit.

As with most other things in life and in condominium associations, better communication leads to better results. Have an association meeting to discuss possible solutions and seek middle ground. Reach out to owners prior to any such meeting with an informational flyer; set up a committee to reach out to owners with concerns to get a better understanding of their situation. Life in a community association means all members are part of the community, and all legal rights have to be balanced.

A word of cautions, however. Don't assume any amendment banning smoking will pass, so sometimes it's best to fairly compromise.

Finally, don't forget to consider grandfathering smokers. Remember Twain.