There’s a growing trend among condominium owners to ban smoking – not just in common areas, but inside individual units and in outdoor areas as well. Bans on smoking in common areas have been around for years. But a ban on smoking in individual units is a relatively new idea – and there are many questions about its legality.
Recently, an upscale 118-unit condo in Minneapolis banned all smoking within the building as well as on private balconies. The town of Belmont, California adopted an ordinance prohibiting smoking in all condo units in the city. A new Utah law permits condo associations to ban smoking, and the attorney general of Hawaii recently issued an opinion that such a ban would be allowed under both state and federal law. However, there have been almost no court cases involving these bans, so we don’t really know yet whether they’ll hold up if they’re challenged.
Quite apart from the legality of such a ban, some condo owners worry about an adverse effect their property values. With a down real estate market, excluding all smokers from the pool of potential buyers could make it even harder to sell. On the other hand, a total ban might make condo units very attractive to potential buyers who don’t want to breathe secondhand smoke. So far, there’s only been one court case involving an “in-unit” smoking ban. It involved a four-unit condo in Colorado, where the owners of one unit were heavy smokers and the owners of the other three units voted to make them stop.
The smokers sued, but a trial judge upheld the ban. First, the judge said, the condo documents (like those in many condos) prohibited nuisances. Specifically, they prohibited “any practice…which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property.” And smoking could be considered a nuisance if the smoke infiltrated other units, the judge said.
Second, the condo association had acted reasonably because the other three owners had first tried to compromise with the smokers and had spent thousands of dollars installing air filters and other methods to avoid the smoke, to no avail.
Third, there is no “constitutional right to smoke.” Although people generally have a right to privacy in their homes, this is not true if their activities harm others, the judge ruled.
If you live in a condo that is considering a smoking ban, here are some thoughts to consider:
- A ban that occurs as a result of an amendment to the bylaws is more likely to be upheld in court than one that consists merely of a regulation adopted by the board of trustees. Boards usually have more limited power to tell owners what to do inside their units. Of course, a bylaw amendment is more difficult to obtain, since it typically requires a vote of the unit owners, and often requires the agreement of two-thirds or three-quarters of the owners.
- A ban that is imposed by a developer is more likely to be upheld, since everyone who buys a unit will know about the ban from the beginning and can’t claim that their rights were taken away.
- A condo that wants to avoid litigation should consider “grandfathering” current smokers. That’s what happened in the Minneapolis condo: Current smokers could continue to smoke, but once they sold their unit, the new owners would have to abide by the ban. This type of compromise might be necessary to obtain a bylaw amendment or to fend off a lawsuit from an owner who smokes.