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.