The Burning Question…
By Brian R. Harris, Esq.
How to handle smoking in community associations presents a significant dilemma for the community’s board of directors. That is, whether to side with what tends to be the majority and pursue a ban on smoking on common elements, in individual homes, or both. Or, whether to side with the smokers who probably did not anticipate a situation wherein someone else would tell them what they can and cannot do in their own homes. If you ask a different question, that is: How should community associations handle smokers? Then, the issue sounds much more personal in nature. After all, smokers purchased their property with the expectation that they would be able to smoke in their home, and quitting is not easy in any case. A smoker may ask whether it would be acceptable for the government to tell individuals they cannot smoke, or drink alcohol for that matter, in their own homes. The governing boards of community associations are, after all, quasi-governmental entities, and the governing documents are quasi-legislation. It may be best, therefore, to take a balanced approach and not consider smokers themselves to be the enemy.
Of course, the negative health effects from second-hand smoke are well-documented. Further, there are numerous reports each year of fires being caused by careless smokers, and the results are sometimes fatal. The issue of whether a community association should amend its documents to ban owners from smoking on common elements and/or in their own homes, however, raises many questions.
For example: Would a smoking ban negatively or positively affect the cohesiveness of the community? Would a smoking ban negatively or positively affect the resale value of the homes? What would the cost be to amend the governing documents to include a smoking ban? Would there be sufficient support from the homeowners to pass the amendment? Would current smoking homeowners have to be “grandfathered” in? Would the amendment withstand judicial scrutiny? Would all types of smoking be banned, e.g., cigarettes, cigars, pipes, e-cigarettes, and marijuana?
The general question of whether a community association may legally ban smoking is widely seen as a non-issue by community association attorneys. There have been few legal challenges to amendments banning smoking despite their growth in popularity. However, there is one Colorado case that is instructive. In a 2005 case, Christiansen v. Heritage Hills Condominium Association, a Colorado district court confirmed that an amendment to ban smoking within units was enforceable. The smokers had argued that the Association could not ban legal activities within their home, but the court disagreed, saying the smokers had no constitutional right to smoke. Further, it found that the association’s smoking ban was in line with the other provisions of the governing documents and public policy, and it was not arbitrary or capricious. Although the case was not appealed to a higher court that could have established legal precedent, it is nevertheless instructive as to how we might expect other courts to rule in similar cases, as the reasoning in the decision is sound.
When it comes to the decision as to whether to propose an amendment to ban smoking in the individual homes, however, the closer the individual dwelling units are to one another may impact the decision. Obviously, in a detached homeowner’s association or site condominium, there may not be a legitimate reason to ban smoking in the homes, whereas, in a co-op or condominium project with multi-unit buildings, there may be compelling health and safety reasons to ban smoking in the homes.
The catalyst for the discussion above is usually when a homeowner contacts either management or the board of directors to complain about smoke. The board is then faced with the challenge of how to respond, which, hopefully, involves obtaining a legal opinion from the association’s attorney. While each situation is different and a legal opinion will require examination of the specific facts at hand, recent case law is helpful to Michigan community associations that would like to minimize their involvement in what is usually a neighbor-to-neighbor issue. In Davis v. Echo Valley Condominium Association 945 F.3d 483 (6th Circuit Court, December 19, 2019), a federal appeals court reasoned that, absent a specific ban on smoking in the governing documents, smoking would not automatically fall under the category of a nuisance that is prohibited by the governing documents. So, the association does not have an obligation to enforce a general nuisance provision against a smoker. Prior opinions from other jurisdictions considering similar cases have reached the same conclusion. Also of note was the court’s finding that the plaintiff’s request for a smoking ban as a reasonable accommodation under the federal Fair Housing Act had no merit, as it would be a fundamental change to the restrictions applicable to the development. And the ruling suggests that amendments banning smoking are reasonable if properly drafted and approved by a vote of the members. As a federal appellate court decision, it created binding precedent for the State of Michigan and all other states within the Sixth Circuit.
This does not mean, however, that an association should ignore smoking complaints – the particular circumstances should be examined by legal counsel, who can then recommend what, if any, further action to take. In fact, associations have been ordered to pay damages in cases where they completely ignored a smoking complaint. One case in California resulted in a $15,000 jury verdict against the association. Chauncey v Bella Palermo Homeowners Association, 26 Trials Digest Ca.16th 28, WL 3340166 (2013). It should also be noted that as time progresses, the anti-smoking movement has certainly been gaining momentum. For example, since 2018, smoking has been banned in all areas of multi-unit public housing developments by the Department of Housing and Urban Development.
The association’s attorney may recommend that the association act as a mediator between the parties, as there may be reasonable preventative measures the association might suggest, such as the parties operating air purifiers in their homes and/or further sealing points at which smoke may permeate their homes. The association may even consider making improvements to common elements such as air ducts, for which the association has the responsibility to maintain, repair, and replace.
In conclusion, the board of directors should carefully consider homeowner sentiment in determining whether to propose an amendment to the governing documents to specifically ban smoking. The board must also consider whether to incorporate a “grandfather” provision allowing current smoking homeowners to continue smoking indefinitely as long as they own the home, while clarifying that they are still subject to the prohibition on annoyances and nuisances in the governing documents. Another alternative may be to allow current smokers to continue smoking for a limited period of time to allow them to adjust to the new restriction. Unfortunately, in either event, the board will be left in the undesirable position of determining how to handle complaints regarding smoking, as they will inevitably arise on a case-by-case basis. But taking legal action against a smoker under a general nuisance provision will likely not be recommended by an attorney. If a restriction is in place specifically prohibiting smoking, the association will be in a much better position to prevail in court, assuming, of course, the restriction is upheld by the court. Given the relevant case law, smoking bans are generally enforceable when properly drafted and approved as amendments to the governing documents.
Brian Harris is an associate attorney with The Meisner Law Group, P.C. Mr. Harris has a wide range of experience in litigation matters including handling all aspects of appeals. He focuses his practice with Meisner Law Group in the areas of condominium and general real estate law and litigation, with particular emphasis on post-judgment collection and bylaw enforcement. He can be reached at 248.644.4433 or firstname.lastname@example.org.