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.  A smoker may argue that it would be like the government telling you that you cannot smoke in your own home, just on a smaller scale. 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 may legally ban owners from smoking on common elements and/or in their own homes either through court order or amendment to the governing documents, however, is a relatively new concept and it raises many questions.

For example: (a) Is it legal to impose a restriction on what may or may not be done inside one’s own home when the activity is otherwise legal?  (b) Would a smoking ban negatively or positively affect the cohesiveness of the community? (c) Would a smoking ban negatively or positively affect the resale value of the homes? (d) What would the cost be to amend the governing documents to include a smoking ban? (e) Would there be sufficient support from the homeowners to pass the amendment? (f) Would current smoking homeowners have to be “grandfathered” in?  (g) Would the amendment withstand judicial scrutiny? (h) Would all types of smoking be banned, i.e., cigarettes, cigars, pipes, e-cigarettes, etc.?

When it comes to the decision as to whether to ban smoking in the individual homes, however, the closer the individual dwelling units are to one another may impact on 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.  The board may be inclined to investigate whether the complaint is well grounded in fact, as the board may be presented with an unverified complaint.  It may turn out that the complainant is merely experiencing the odor of smoke and not actual exposure to smoke.  On the one hand, this presents a scientific question, which would likely require testing and an expert opinion if the matter were litigated.  On the other hand, if a court were to deem the complainant qualified, the complainant may be able to present expert testimony regarding this issue, or a court may even be able to take judicial notice of the harmful effects of second-hand smoke.  At bare minimum, in terms of smoke entering a home, however, there would have to be evidence presented that the smoke is, in fact, permeating the complainant’s home in order for a court to have a sufficient basis to issue a court order preventing the smoker from smoking on common elements or in his or her home.  Further, there may be reasonable preventative measures the complainant could take, such as operating air purifiers in his or her home and/or further sealing points at which smoke may permeate the home.  The association may even have an obligation to act if the smoke is permeating the home through common elements such as air ducts, for which the association has the responsibility to maintain, repair or replace.

In any event, in such a scenario, and in the absence of a restriction in the governing documents banning smoking, the issue is typically one of homeowner versus homeowner and unless more than one homeowner is affected, there may not be a sufficient legal basis for the association to take any action on behalf of either homeowner; particularly in light of the fact that there appears to be no settled law in many jurisdictions.  Cases that have been brought against community associations and/or smokers based on common law theories such as negligence, nuisance and/or trespass have been generally unsuccessful.  As recently as February 2016, a New York appellate court affirmed a trial court’s ruling in a case against a condominium association brought based on various tort theories that the smoking at issue did not justify the imposition of tort liability. Feinstein v Rickman, 26 NYS3d 135 (2016).  In 2011, a suit was brought against a cooperative housing association, and the appellate court in Maryland held that the jury did not err in determining that the smoking at issue under the facts of that particular case did not constitute a nuisance, trespass or breach of covenant of quiet enjoyment. Schuman v Greenbelt Homes, Inc., 212 Md. App. 451 (2011).  In another 2011 decision, an appellate court in New York upheld dismissal of a case brought by a condominium unit’s owners against their neighbors claiming their smoking constituted a nuisance.  The court specifically noted that there was no prohibition in the condominium bylaws against smoking and that “persons living in organized communities must suffer some damage, annoyance and inconvenience from each other.” Ewen v Maccherone, 927 NYS2d 274 (2011).

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, in the Schuman case, the court noted that the opinion “does not pretend to be the final word on liability for second hand smoke in multi-unit housing.”  Moreover, associations have been ordered to pay damages in cases where they completely ignored a smoking complaint.  One case in California resulted in a $15,000.00 jury verdict against the association and in favor of the complainants. 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.  In 2013, a bill was introduced in California which would have banned smoking in all multi-unit residences, including condominiums, apartments and duplexes, but the law was not passed.

As we all recognize, the board generally has a legal obligation to act in the best interests of the association; not any one particular homeowner.  While the complainant may be demanding immediate action, there are compelling strategic reasons why the association would be well advised to look before it leaps.  While the association’s attorney could send the alleged smoker a letter demanding that the homeowner immediately cease and desist, or even initiate an immediate lawsuit seeking a court order preventing the homeowner from smoking, if justified, the association would typically have to rely on generally accepted nuisance law or the standard provision typically found in many governing documents banning homeowners from engaging in behavior which may be a nuisance or annoyance to the other homeowners.

If the board is inclined to take up the complainant’s cause, the association would be on much better footing in an enforcement action if it had a specific smoking ban in its governing documents, which begs the question: Should the documents contain such a restriction?  If there is no such restriction, the board must consider numerous questions and the potential impact of such an amendment on the association.

In the absence of a specific smoking ban, the complainant would typically sue the association and/or the board of directors and would first have to prevail on the merits and convince a judge to enter an order prohibiting the homeowner from smoking under the current set of documents.  He or she would then have to establish that the board breached its fiduciary duty to the association by failing to pursue the matter.  Further, he or she would have to prove he or she sustained actual damages.

If the complainant were to sue the association and/or board of directors, the matter would, assuming there is coverage, be defended by legal counsel assigned by the association’s insurance carrier and the board may even be indemnified for any damages not exceeding policy limits awarded to the complainant.  While the association could sue the alleged smoker, the following question arises: Why should the association choose sides and fund the complainant’s lawsuit, perhaps even requiring a special assessment to do so when it could seek to amend the governing documents to reflect the values of the majority of the homeowners?  The question seems even more absurd when one considers the fact that the complainant generally has the ability to sue the other homeowner directly.  Keep in mind also that the association would spend its own money prosecuting such a lawsuit, although it may ultimately have the right under the governing documents and/or statutory law if it prevails to recover reasonable attorney fees from the defendant.  Conversely, in the event the complainant decides to sue the association and/or board, the defense may, if such coverage is available, be funded by the association’s insurance carrier.  The association may be best served, financially at least, by carrying a shield rather than a sword.

While a community association may amend its governing documents to specifically ban smoking on common elements and/or individual homes, assuming enough homeowners vote to support said ban, it remains to be seen, if challenged, whether the courts will hold that such bans are legally enforceable.  At least one court has upheld a ban on smoking in a condominium project.  In 2006, a District Court in Colorado upheld an amendment banning smoking within the boundaries of an entire condominium project.  The court held that the amendment was proper, reasonable, made in good faith and not arbitrary or capricious.  Association boards must be mindful, however, that if the governing documents are amended to ban smoking on common elements and/or inside individual homes, the board will then be charged with an obligation to enforce the restriction, which, undoubtedly, may lead to even more legal expense and/or litigation.

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.  If a restriction is in place 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.

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