Should Your Condo/HOA Follow the Trend Toward Smoke-Free Communities?
HOAleader.com - Tip of the Week - October 13, 2023
In this week's tip, we ask if it's time for your community to ban smoking—whether it's cigarettes or marijuana—altogether.
A Washington, D.C., owner got a court order forcing her neighbor to quit smoking weed. And apparently it's possible for a condo to ban cigarette and marijuana smoking in New York City. Looks like that's also true in Minnesota, though the article doesn't distinguish between common areas and units on the community association front.
Depending on where you are in California, your work on this front may already be done. "Some jurisdictions have smoking bans in multiunit housing, and some have complete bans, not just in common areas," reports Andrea L. O'Toole, a community association lawyer for 18 years and the founding partner at
O'Toole Rogers in Lafayette, Calif. "Bans in common areas or enclosed common areas are pretty common. But some cities have put in complete smoking bans, even stating that people can't smoke within 25 feet of a window, vent, or door of a building.
"Even if their jurisdiction hasn't done that, some associations have taken that lead by banning smoking in units," she adds. "They've created a smoking area outside that fits the bill, meaning it's not near doors or vents. I usually recommend boards put the ban in their covenants. That's a little easier to enforce if it's there, approved by membership, as opposed to having adopted a rule.
"Thankfully, most people don't smoke anymore, so it's not a huge problem," says O'Toole. "But I have a couple of cases on my desk involving nuisance claims and smoking. One is in a place where there's no smoking ban. Another is in a community with a secondhand smoking ordinance that bans smoking in the common
areas. The third is where there's a complete smoking ban by the local jurisdiction.
"In that third situation, the person is smoking in their unit, and people moved in next door and started complaining," she explains. "The smoker moved
outside to their back patio, which made things a little worse. Now the smoke is permeating into multiple units.
"We've identified an area where this person could go smoke," notes O'Toole. "But I know it's a pain—you don't want to have to
walk 50 yards to go smoke. And this owner is very much a 'my home is my castle' person. We're in a fight with him, but he's going to lose. He'll probably sell his unit and move someplace else."
Our experts say you may be able to ban smoking
with a rule, and you almost definitely can do it by amending your documents. But read our new article, More Condos are Banning Smoking: What to Know, to find out why your
existing nuisance provisions might be your strongest weapon against smoking.