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The Secondhand Smoke Dilemma: What Can Be Done? What Should Be Done? What Must Be Done?

CCOC Communicator

This article originally appeared in the Spring 2011 CCOC Communicator, the newsletter of the Montgomery County, Maryland Commission on Common Ownership Communities

With escalating concerns about secondhand smoke exposure, an increasing number of condominium residents are demanding that their boards address cigarette smoke within their community, by limiting it, banning it, or taking enforcement action to prevent the emanation of cigarette smoke from one unit to another. Responding to these demands requires boards to understand what they can do, and the potential implications of doing nothing.

Legality of Smoking

Cigarette smoking is, in general, legal. Most states have adopted laws prohibiting cigarette smoking in public spaces, bars and restaurants due to secondhand smoke exposure concerns. However, they have not addressed cigarette smoking in multi-family residential dwellings. This means condominium boards of directors must address secondhand cigarette smoke complaints.

Smoking in the General Common Elements

A first step for many condominiums is addressing cigarette smoking in the common elements. In general, the board of directors has the authority to regulate the use of the common elements by the adoption of reasonable rules and regulations. These rules may prohibit legal activities if the board determines that such a prohibition is in the best interest of the condominium and there is a reasonable basis to support such a rule. Based on the potential health effects, fire concerns, odor issues, and other concerns, there appears ample basis to support the reasonableness of a ban on smoking in the common elements. As a result, the board has the authority to ban smoking in all of the common elements, including both general common elements, i.e., the lobby, doorways, pools, grounds, community rooms hallways, etc. (“GCE”) and limited common elements, i.e., balconies and patios (“LCE”). Before adopting such a sweeping restriction, the board should consider carefully the practical implications of any ban.

When contemplating banning smoking in all of the GCE, boards should consider whether the ban should include both indoor and outdoor portions of the GCE. Most smoking residents will probably understand being unable to smoke in the indoor portions of the GCE. However, banning smoking in outdoor GCE, such as the outside the building, especially near the entrance doors, may be contested, as the potential health affects arguably are reduced. As a compromise, the board may choose to ban smoking within a certain number of feet of the entrance door. Regardless, the decision to ban smoking on the GCE is vested in the board of directors.

Smoking in the Limited Common Elements

Ironically, even though LCE are generally located outside, the reasons for banning smoking on the LCE may be more compelling than for the GCE. Cigarette smokers tend to smoke on their balconies and patios to avoid smoking in their units. However, cigarette smoke blows with the wind, easily entering any open window of a neighboring unit, directly exposing neighbors to secondhand smoke and the accompanying odor. On the other hand, LCE are a resident’s exclusive use area and, if they smoke, which is still legal, this is where they may smoke at their home. Some longtime smoking residents may have been smoking on their balconies well before the heath concerns of secondhand smoke became widely understood. Banning smoking on the LCE will negatively affect these residents’ enjoyment of their home. The board must balance these competing concerns, and do what it believes is in the best interest of the condominium.

Smoking in the Units

Most residents’ cigarette smoking associated complaints arise from smoke infiltration into their units from neighboring units. Responding to these complaints presents a number of challenges for boards. While, many state statutes and bylaws grant boards rule making authority, arguably allowing boards to adopt a rule banning cigarette smoking, adopting such a rule is not recommended. A rule banning smoking within a unit would be subject to challenge as an unauthorized amendment to the recorded condominium documents, which contain the unit use restrictions. Furthermore, as a practical consideration, any ban on in-unit smoking will require a board to become the smoking police. Unit owners should determine if this issue warrants such a dedication of the condominium’s resources.

Given the controversial nature of banning in-unit smoking, which prohibits residents from doing something legal in their own homes, and the potential drain on resources, the unit owners should vote on any proposed in-unit ban as an amendment to the bylaws. As with rules, to withstand a challenge, an amendment to the bylaws must be reasonable. Again, due to the potential health effects, fire concerns, odor issues, and other concerns related to smoking, an amendment prohibiting smoking in units should be found reasonable if challenged.

Typically, an amendment to the bylaws requires the approval of a supermajority of the unit owners, a difficult achievement for any medium to large condominium. Absent such an amendment to the bylaws, a board may find itself in the difficult position of having to respond to complaints of cigarette smoke from residents without express authority to take enforcement action.

Responding to Unit Owner Complaints

Although banning smoking in the common elements may be a good start, it may do little to address complaints from residents about cigarette smoke emanating from their neighbor’s unit. While a board of directors may not have a duty to protect the health of the condominium’s residents, the board is required to enforce the provisions of the governing documents. Most bylaws contain prohibitions on nuisances or offensive activities. Unless otherwise defined in the bylaws, what constitutes a “nuisance” or an “offensive activity” is a question of fact for the board to determine in its business judgment. Given the board’s duty to enforce the governing documents, the board of directors should respond to a complaint of cigarette smoke as it would any other complaint. If determined appropriate, the association should send a notice of violation or a cease and desist notice to the smoking resident, demanding that the unit owner take the necessary steps to stop cigarette smoke from emanating from his or her unit. If the complaints continue, the board should publicize and hold a hearing. At the hearing, the board may determine whether or not the smoking constitutes a violation of the condominium governing documents. If they find a violation, they may impose sanctions.

The violation determination and what sanctions to impose are decisions that rest with the board of directors and the correctness of the decision should be protected from court review based on the business judgment rule, in Maryland and Virginia, and the lesser standard of the rule of reasonableness, in the District of Columbia. The key is, the board must make a decision, one way or the other, and not ignore the complaint. The board can also encourage the complaining unit owner to address the issue with his or her neighbor directly and can provide assistance in that regard.

If the board chooses to do nothing, it runs the risk of having the condominium sued for failure to enforce the condominium documents. Condominium residents around the country have filed suits against their condominiums seeking declaratory judgment that complained smoking is a violation of respective condominium documents and seeking compensatory damages from condominiums for failing to enforce the condominium documents, with mixed results. To date, there have been no reported cases in the Maryland, Virginia or the District of Columbia addressing these issues, but there is a case pending in the Maryland Circuit Courts, involving a residential cooperative, where many of these same issues have been raised.

There are tools available for those boards that wish to proactively address cigarette smoking within their condominium. For those boards that do chose to do nothing, beware.

Jeremy Tucker is an attorney in the firm’s Community Association group. His practice focuses on representing community associations in a wide range of matters, including general counsel and litigation. To learn how secondhand smoke may impact your association, contact Jeremy at (301) 657-0157 or jmtucker@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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