Can your Condo Association or HOA Ban Smoking?
I get asked this question frequently. With all public facilities, and most private facilities, being smoke-free and the knowledge of the dangers of second-hand smoke widespread, non-smoking owners and board members start to wonder if they can limit or prohibit smoking within their communities.
Whether a community consists of single-family homes, townhomes or condominium units, the board of directors can probably adopt rules limiting or prohibiting smoking in common areas, such as lobbies, pools, clubhouses, tennis courts, elevators and stairwells. Many Declarations of covenants include language along the lines of “The Board of Directors may adopt reasonable rules concerning the common areas.” A board is often within its right to adopt a rule prohibiting smoking within the common areas. Many do this to not only address smoke and odor, but also to prevent the accumulation of cigarette butts. Some associations choose to not prohibit smoking, but to have designated smoking areas to limit smoke exposure to non-smokers. These rules are generally self-enforced, but fines could be issued for violations. What path a board chooses to pursue will depend in large part on the extent to which smoking is viewed as a problem. There is no “one-size-fits-all” approach.
Prohibiting smoking within individual homes is a trickier issue. Usually, a home is a person’s castle, and courts are not fond of restrictions on what a person does in the privacy of their home, absent some clear authority in the association’s governing documents. If an association can garner the necessary member support, it may pursue an Amendment to the Declaration to prohibit smoking completely. This is more frequently done in condominiums or townhomes, where owners are in close proximity, and less commonly in single-family home communities. This can be a hard sell, however, and even if the membership is in agreement, it might impose a level of restriction on a community that is so far beyond the original scope of regulation as to be unreasonable. And therefore unenforceable. Another option is to fall back on the familiar but vague “nuisance” prohibition found in most Declarations.
Nuisances are generally considered to be obnoxious, offensive, or unlawful activities which become an annoyance to other owners, or which endanger the health and safety of owners. Tobacco smoke is not unlawful, but it may be obnoxious or offensive, and it may very well endanger the health of others. But is one cigarette smoked daily enough to cause a nuisance? Ten a week? This calls for a subjective determination, and this makes it hard to determine or enforce. I would recommend that the nuisance provision be used on a limited basis to address only the most significant situations relating to tobacco smoke. And careful consideration be given to how much smoke is being carried off of the property of the smoker, the extent to which reasonable rules can be implemented to address this, and in some circumstances, the particular health concerns of an owner, before any action is taken. If at all possible, an amicable resolution should be pursued, such that neighbors are not pitted against each other. I have seen agreements to limit smoking to certain times of the day, to purchase an air purification system, or to not smoke on a connected balcony. If this doesn’t work, however, the Association may have to get involved and consider all options, including an Amendment to the Declaration for an enforcement action under the nuisance provision.
Ultimately, all these other approaches, such as rules, using the nuisance provision, etc., are simply nibbling around the edges of the problem. I believe that if you want to prohibit smoking in common areas, this should be approached by an Amendment to your Declaration. If you want to completely prohibit smoking in a condominium or townhome (forget about a smoking prohibition in a single–family home), the only way to make this enforceable is to incorporate it into the Declaration. By an Amendment to the Declaration. I have created a couple of condominiums in Omaha recently that incorporate this smoking prohibition from the get-go. Now that’s a lot easier of course then when the condominium units are sold off to individual owners. On the other hand, amending a condominium Declaration is easier than amending a Declaration for a single–family home community.
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