States, cities and businesses are banning smoking in more and more places. Can condominium associations do the same by prohibiting residents from lighting up in their own homes? Many American smokers may think that’s unconstitutional, illegal or just plain “un-American.” But they’d be wrong from a legal perspective and surprised to know that smoking restrictions are becoming more and more common. If an association uses proper protocols and fairly basic application of state property laws, owners who’d like to smoke in their units may soon discover their fellow unit owners can stop them from doing what they increasingly can’t do any place else.
Adam is disabled. He is buying Marlboro Red cigarettes online and smoking them at home. He cannot accept smoking ban in his housing unit.
Courts have repeatedly held throughout the U.S. that homeowners give up certain rights when they decide to live in a condominium association. Condominiums often prohibit pets, loud music, barking dogs or dirty living conditions. Given smoking bans in public places and the proven harm of second hand smoke, condominium associations are following suit by banning smoking in individual units.
Associations often pass specific provisions or rules that ban residents from lighting up in their units. Others rely on their declarations, most of which contain a “nuisance clause” prohibiting unit owners and occupants from engaging in any activity that would affect another owner’s use and enjoyment of their unit or that would otherwise constitute a nuisance. Whether smoking within one’s own unit and the resulting secondhand smoke rises to the level of a nuisance will depend greatly on the particular details, and, in some cases, the state or federal law. A nuisance is an unreasonable, unwarranted or unlawful use of one’s property that invades the use and enjoyment of another’s property. However, in determining whether a particular annoyance constitutes a nuisance, a court will use an objective standard to consider the effect of the annoyance on the ordinary reasonable person, rather than an effect on a person who is abnormally sensitive.1
Condominium boards routinely use a similar standard to determine whether a nuisance exists by asking whether the average person residing in the building would find the conduct complained of a nuisance. There is no measurement to determine how much or how often secondhand smoke must seep into other units to qualify as a nuisance. Most associations must rely on the facts of a specific situation to determine whether a nuisance exists. An occasional whiff of secondhand smoke–by one or perhaps even all residents–probably won’t create enough of a nuisance to warrant action on the part of the Board. Likewise, a demand from a unit owner who simply doesn’t like smoking may not provide a sufficient basis for declaring smoking to be a nuisance. But continuous, repeated exposure to secondhand smoke by several unit owners or smoke that cannot be curtailed by reasonable means will probably constitute a nuisance. In determining whether smoke constitutes a nuisance, an association should focus on the frequency and severity of the infiltration, the nature of the building construction and the number of residents complaining.
If an association wants to ban smoking, some methods are more airtight than others. One method is to have the board of directors pass a rule; another is to amend the declaration. However, while rules are subject to judicial review for reasonableness if challenged by an owner, declaration amendments are more likely to withstand challenge because courts can review those only for whether they’re unconstitutional or contrary to public policy.