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.