Condo smoking bans: Can boards butt in?

February 25, 2012

If your next-door neighbor in your condominium association cooks food that creates an objectionable odor, would your condo board of directors be required to take any action against that neighbor?

Probably not. Perhaps the board (or the property manager) would discuss the situation with the neighbor and try to reach a happy solution, but generally this would be a matter exclusively between the two owners.

But what if your neighbor is a smoker and her smoke filters its way into your apartment? Is the association under any obligation to do anything about this?

A recent case was brought by an owner claiming that Greenbelt Homes, a Prince George’s County cooperative association, had a duty to enforce the “nuisance clause” in the cooperative legal documents. The circuit court judge did not agree that the second-hand smoke was a nuisance, saying the decision would have to be made by the legislature.

Anti-smoking legislation enacted across the country prohibits smoking in public areas, such as restaurants, public buildings and sports arenas. In fact, the Montgomery County Council — sitting as the Board of Health — adopted Regulation 17-210, which went into effect Aug. 12 and prohibits smoking in common areas of multifamily residential dwellings, including condominiums. “No smoking” signs must be posted in such areas as lobbies, halls, laundry rooms and even playgrounds.

However, the law does not apply to smoking in individual units.

Can a condominium association prohibit smoking in the units?

Case law generally holds that every condominium unit owner is legally bound by the legal documents as they exist when the unit is purchased and as they may be legally adapted from time to time.

What are these legal documents? In condominium law, there is a hierarchy that must be followed by the board of directors and by a judge if there is litigation. The highest priority is a state’s condominium act. The condominium laws in the Washington area are designed to provide some flexibility for associations to adapt their rules to their particular situations.

Next, there is the “declaration,” which is a document recorded among the land records in the county or city where the property is located. That document asserts that the property is “declared” to be a condominium and spells out some basic issues, such as what constitutes a common element vs. a unit.

Next in line are the bylaws, the bible that governs the association. And finally, there are rules and regulations adopted by the board of directors. The board has great latitude to enact reasonable rules, but its authority to do so must come from the hierarchy above.

For example, if the bylaws state no pets, the board cannot change that. However, if the bylaws allow pets, the board can enact rules such as requiring vaccination, or keeping dogs on a leash while on common property.

To my knowledge, smoking (pro or con) is not mentioned in any existing condo documents. I suspect, however, that with the heavy emphasis on going “green,” more and more new or converted condominiums will be smoke-free.

What can the board do? A condominium consists of three parts: common elements, such as the roof or the elevators; limited common elements, such as a balcony that cannot be used by everyone; and units. Clearly, the board can prohibit smoking in both common and limited common elements. Boards have fairly broad authority to manage and operate the building. But what about banning smoking in individual units?

The board has no authority merely to enact just a rule. A 2007 opinion from the Hawaii attorney general summarized the law: “A condominium association may regulate smoking in an individual unit . . . if the association amended its declaration or bylaws to include a smoke-free policy, or if the association found that smoking in an individual unit . . . unreasonably interfered with the use and enjoyment of other units or the common elements by other unit owners.”

The key is to amend the bylaws or the declaration; that always requires a supermajority vote of two-thirds or even three-fourths of the owners. Since the declaration has a higher level of priority, my preference is to amend that legal document.

Every condominium document spells out the amendment procedure. The board on its own initiative — or by a petition from owners representing a percentage spelled out in the document — can put a proposal to the membership. Every owner must be provided the language of the proposal and a specific date on which the vote will take place. Owners may vote in person or by proxy.

Amending condo documents is not easy. The legislators who enacted the condo laws wanted to make sure that a small minority (or even a slim majority) could not change certain basic issues — issues that directly affect all owners.

Proponents and opponents of the proposed smoking ban would mount a vigorous campaign. One method many associations use to encourage reluctant owners to vote in favor of a proposal (such as limitations on the number of investor owners) is to “grandfather” current owners. In other words, current owners may smoke in their units but when they sell, the unit must be smoke-free forever.

To my knowledge, only one court case has addressed the issue in which a small condominium association amended its declaration to ban smoking in the entire building, including the units. A Colorado court upheld the validity of the amendment in 2006, primarily because “it was reasonably investigated, drafted and passed by three out of four owners after years of trying to address the problem by other means.”

The U.S. Supreme Court weighed in on the smoking debate when it held, in 1973, that the act of smoking is not a fundamental right.

I suspect we will begin to see more and more smoking bans enacted in condominium associations.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.

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