Lisa Magill in Board Operations on July 6, 2012
And residents are not just annoyed, but justifiably worried about fire risks as well.
Since smoking cigarettes is perfectly legal, many board members simply shrug their shoulders and say, "What can we do? It's the owner's apartment and they are allowed to smoke.
Where There's Smoke, There's Ire
Well … that answer is not exactly true. Courts across the country are addressing nuisance claims brought by non-smokers and more and more of them are ruling in the non-smokers' favor. In some cases the court requires the smoker to install ventilation systems and extra insulation to prevent smoke from entering other units. Some communities are voluntarily becoming "smoke free" through amendments to their governing documents.
Smoking bans initiated by condominium owners through amendments to governing documents have been upheld in New Jersey, Colorado, California, Hawaii and other jurisdictions.
The government is jumping on this bandwagon, too. There is a combined effort on the part of the U.S. Department of Housing and Urban Development (HUD), the U.S. Department of Health and Human Services (HHS) and others to advocate and encourage co-ops, condos and other multifamily buildings to adopt smoke-free policies to protect residents from the dangers of secondhand smoke and to reduce property maintenance costs.
They have jointly published a new, 63-page manual, Smoke-Free Housing, that provides eye-opening facts for co-op and condo boards and property managers.
You have real and viable options and facts at hand if your co-op or condo wants to do something about the odor, adverse health impacts, costs and annoyances caused by second-hand smoke.
Lisa A. Magill is an attorney at the law firm of Becker & Poliakoff, who has been active on several Boards of Directors of the Community Associations Institute (CAI) where she has been a featured speaker on numerous housing issues. She has also written and presented several qualifying for Community Association Managers (CAM). This is adapted from her article at her firm's co-op and HOA blog.
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