Clearing the Air: Smoking Regulations & Condos

By Henry A. Goodman, Esq.

As more studies confirm the harmful effects of smoking and secondhand smoke, the banning of cigarettes, cigars, and pipes is becoming more prevalent in common areas throughout Massachusetts and Rhode Island.  And now, this is also becoming a major issue in condominium units.

On the one hand, smoking in your own home is lawful and specifically permitted by statute.  Unit owners who smoke tend to be stubborn about their perceived privacy rights, particularly if they are addicted and find it so hard to quit. They typically would resent being told that they have to smoke outside of their unit and even outside of the condominium property.  But what about the rights of non-smokers?

On the other hand, smoke and/or “smoke smell” is generally not contained to one particular unit; it can waft through windows and through hollows in the walls into other units. This can affect other homeowners’ comfort—and wellbeing—in their own units. Those affected believe that the rights of a community trump the rights of individual residents, citing circumstances like those involved with loud music disturbances.  Further, the condominium is concerned that adversely affected owners may sue the smokers, their owners, and the board for exposure to secondhand smoke—and this could be a liability issue.

Containing Secondhand Smoke
The potentially lethal health effects of secondhand smoke are well-documented by the CDC.

The fact is that secondhand smoke contains hundreds of toxic chemicals that significantly increase the risk of heart disease and lung cancer.  Children are particularly vulnerable to secondhand smoke, which can cause asthma attacks, ear infections, and even SIDS (Sudden Infant Death Syndrome).  And as for those already ill or handicapped, their conditions may be exacerbated.

But what are the legal ramifications of secondhand smoke in condominiums?

Under most condominium documents, annoyances, nuisances, and noisome activities are not permitted in condominium units. If smoke penetrating a unit is noxious enough, it can indeed constitute a nuisance and the board is obligated to take action to stop nuisances.

In addition, boards need to address special circumstances regarding handicapped people.  If smoke exacerbates the handicap, the board would be obligated under anti-discrimination laws to take action to stop the smoke from entering that unit when the smoke traverses common property to reach the non-smoking unit.

How to Clear the Air
The question is, what steps should associations take to remedy the situation? The first but most expensive action would be to retrofit the building to prevent smoke from entering through cracks, ducts, wall plugs, and voids between walls. A less expensive solution would be to amend the Master Deed to prohibit smoking in units and in the common areas. If that doesn’t work, an amendment to prohibit smoking in the common areas might be a compromise solution.

In any event, it is better to address remedial options and take action before a problem occurs. However, if a board cannot obtain support from the unit owners, being proactive, such as seeking an injunction against the smoking parties, would be an alternative. Even if the association loses, it can’t be accused of failing to act.  It’s also important to note that failure or refusal to take action in circumstances involving a handicapped person or a nuisance could render the board liable for damages.

Of course, beyond legal damages, health-related damages can be devastating if the rights of non-smokers are ignored.

At GSL, we help associations provide healthy communities and prevent issues before they become problems.  For more information, contact us here