Smoke doesn’t just get in your eyes, as an old torch song proclaims. In multifamily buildings, cigarette smoke from nearby units wafts annoyingly into units occupied by non-smokers, creating tensions between neighbors and spurring demands for remedial action in apartment buildings and condominium communities alike. The question for community associations is, what, if anything, can you do about it?

Landlords clearly have the right to ban smoking, if they choose, in units they own and rent.  But the legal framework in a common interest community is more complex.  Smoking restrictions in common areas are widely accepted, but can a community association prohibit smoking entirely — not just in public spaces (in building lobbies, around swimming pools, and the like) — but within individual units, as well?

You would think the answer would be, unequivocally, “No.”  Even in a community association setting, an owner’s home is his or her castle — more or less.  Owners might not be able to paint their front doors any colors they like or hang giant banners from their balconies, but surely they should be free to wear  fuzzy pajamas, cook fish, and engage in any other lawful activity within the confines of their homes, including smoking six packs a day, if they choose. Smoking may be unhealthy,  costly, and everything else its critics allege, but it is not illegal. 

Second Hand Harm

However, it is harmful to others, and that is the argument nonsmokers are using in their increasingly aggressive efforts to ban smoking, not just in public areas, but, seemingly, everywhere on the planet.  Second-hand smoke, they note, is a proven health hazard, as harmful potentially to nonsmokers as it is to those who smoke.  While smokers have every right to indulge in this habit if they choose, this argument goes, they have no right to threaten the health of others in the process.  As one of the militant anti-smoking Web sites puts it:  “Smokers have every right to inhale cigarette smoke, but they have no right to exhale it into my lungs.” 

That is an argument that nonsmokers have won and continue to win with some regularity in the courts.  In Massachusetts alone, nonsmokers have prevailed in at least three cases over the past several years:

Getting Closer

Outside of Massachusetts, the courts have been equally supportive of nonsmokers.  An Ohio appeals court ruled in a 1994 case (Dworkin v. Paley) that the presence of second-hand smoke in an apartment represented a breach of the “quiet enjoyment” covenant.  An Oregon jury, using similar reasoning, found for a nonsmoker who claimed that she had suffered medical problems when a smoker moved into the unit below hers.  And four years ago, the Department of Housing and Urban Development (HUD) resolved a dispute between smokers and non smokers (U.S. Department of Housing and Urban Development b. Kirk and Guilford Management Corp. and Park Towers Apartments) by brokering a consent decree requiring the development to ban smoking prospectively, by inserting a no-smoking provision in the leases offered to new tenants. 

Closer – much closer – to home for community associations, Lincoln Towers Complex, a cooperative in New York City, last year approved a by-law change barring smoking for all who purchase units in the development in the future.  This reportedly represents the first common interest development to mandate an (eventually) smoke-free environment, but it won’t be the last to feel pressure to do so.  It is only a matter of time before a second-hand smoking complaint lands with an unwelcome thud before a Massachusetts community association board.  So it’s a good idea for board members and condominium residents generally to begin thinking now about how they will respond. 

No Consensus on the Law

Unfortunately, legal opinions are divided on exactly what boards can and should do.  As yet, there is no clear consensus on the central legal question in this debate:  How far does the authority of a community association extend?  That question actually has two parts:

Writing in the November/December 2002 issue of the Community Association Institute’s magazine, Common Ground, attorney P. Michael Nagle argued forcefully that community associations have both the authority and the responsibility to protect residents from the proven harm of second-hand smoke.

“The body of knowledge concerning the dangers of smoking both to smokers and to innocent bystanders is so great and the data so overwhelming, that virtually any ban on smoking seems possible,” Nagle wrote.

“Most courts would have no problem finding that the presence of [second-hand smoke] constitutes a nuisance to nonsmokers,” according to Nagle, who contends that boards can address smoking  as they would any other nuisance, by enacting and enforcing a rule prohibiting it.  The language in most condominium documents barring “noxious or offensive conduct” would provide the legal justification required to withstand a court challenge, Nagle and others are convinced.

But I’m not so sure.  While the authority of association boards to adopt rules governing activities in common areas is clear, their authority to establish rules affecting behavior within individual units is open to question.  Advocates of smoking bans note correctly that community associations ban pets as a nuisance and should be able to prohibit smoking in the same way.  But associations control pets through document amendments, i.e. the Master Deed, Declaration of Trust or By-Laws (which typically require the approval of at least 75 percent of the unit owners and sometimes more), not through rules and regulations, which boards can enact on their own.  A document change clearly is more difficult to accomplish, but it is also more likely to survive a legal challenge.

Balancing Interests

Regardless of whether your association decides to pursue a smoking ban, there is no question that board members should take complaints about second-hand smoke seriously.  Tenants have sued their landlords successfully, claiming adverse health effects resulting from exposure to second-hand smoke; it does not require much of a stretch to imagine that a condominium owner might bring a similar action against a community association.  Also, as Nagle pointed out in his Common Ground article, the courts have made second-hand smoke a factor in child custody decisions.  “Woe to the board that refuses to act [on a second-hand smoke complaint] and ‘causes’ a parent to lose custody of his/her child [as a result],” he warned.

While a smoking ban is one response to complaints from nonsmokers, it is not the only option, nor is it the first one community associations should consider.  Unless your community consists entirely of nonsmokers, some residents, and possibly many of them, will object.  Although you have to consider the concerns of residents who do not smoke, you can’t completely ignore the concerns of those who do.  So before you start thinking about a smoking ban, try to find ways to deal more effectively with the smoke.  For example:

If air flow and other structural modifications don’t work, poll unit owners to gauge the level of support for a document amendment banning smoking.  Explain the issues, including the health risks and the concern about the association’s potential liability should a resident claim health problems caused by second-hand smoke.  If you decide to implement a ban, suggest a grandfather provision exempting current owners.  That may make the measure acceptable to more owners, although it won’t resolve disputes between current smoking and non-smoking residents.  Boards that find a way to ease those tensions should consider a career with the United Nations. Your diplomatic skills are clearly needed there