Smoking bans within individual units are legally enforceable. Certain condominium associations that we represent have amended their bylaws to ban smoking within individual units as well as within the common areas. Since courts have already ruled that secondhand smoke is a legal nuisance, condo boards usually respond aggressively to owner complaints about smoking odors. However, these boards determined that there were issues. Even if they could locate the source of smoking odors, it could be difficult to hold the offending owner fully responsible for allowing the smoke to infiltrate into other units because of the construction of their buildings. In addition, engineering solutions were potentially costly and not guaranteed to resolve the problem. To avoid the cost of investigating, arguing, and resolving recurring smoking complaints, the boards proposed a general ban on smoking within units, and the unit-owners resoundingly agreed. One unit-owner sued the board, claiming that the bylaw amendment unconstitutionally infringed on his rights of privacy and exceeded the powers of the condominium. After reviewing relevant case law, the court signaled to the owner that he surrendered certain rights by joining a condo association, and that the association owners did have the right to amend their bylaws to ban smoking. The unit-owner agreed in court to comply with the ban and to pay a substantial portion of the association’s legal fees. But despite his agreement, the owner has continued to violate the smoking ban. As a result, the association has been compelled to file a motion for contempt. The owner now faces substantial monetary fines and may ultimately have to sell or vacate his unit.
Any rule needs to be enforced to be effective. Associations need to be prepared to enforce a smoking ban to protect the interests of its owners. Smoking is not considered a disability under the Fair Housing Act or the Americans with Disabilities Act, for which a “reasonable accommodation” must be made. However, the power of a smoking addiction can apparently overwhelm an addict’s best efforts, even when faced with a court order.