PROBLEM SOLVED – SMOKER VS. NON-SMOKER
PROBLEM: An owner who doesn’t smoke is fighting with a neighbor who does. The non-smoking owner says the second-hand smoke seeping into his unit is a health hazard and has threatened to sue the board if we don’t “do something about it.” The smoking owner says he has a right to smoke in his unit and has threatened to sue if we do anything to interfere with that right. What should the board do?
The board has several options, but ignoring the issue isn’t one of them.
Two key principles define your options and limit them:
Boards have the authority to control behavior in common areas, but as a general rule, they can’t control behavior within individual units.
Second-hand smoke is a known health hazard.
Put these principles together and you will find yourself between the proverbial rock and hard place. Nonsmokers injured by the second-hand smoke would likely sue the association for failing to control it; smokers would sue the board for illegally restricting their ownership rights or force the board to sue them to enforce any no-smoking directive. Both parties will expect the board to resolve their dispute immediately – and in their favor. The board should make it clear from the outset that the issues are complicated and there is no magic wand that will resolve them quickly.
Competing Rights
You are dealing with competing sets of rights and, at least initially, the board should seek solutions that address both the non-smoker’s legitimate concerns about second-hand smoke and the smoker’s assumption that he should be free to engage in any legal activity within his home. A few suggestions:
Inspect the Units and common areas to determine if there are any cracks or openings in walls and ceilings through which smoke may be seeping.
Encourage involved Owners to change, clean or upgrade air filters in their units.
Ask the smoking neighbor to install an air filtration system in his/her unit and reduce smoking.
If possible, install additional fresh air intakes in the ventilation system.
Depending on the location of these modifications/measures, the Board may have to pay for some or all of them as association expenses if they pertain to the common areas or in the interest of reducing litigation risks for the association.
Disputes between smokers and nonsmokers are notoriously difficult to resolve. Both sides tend to draw hard lines in the sand, making compromise difficult and often impossible . An impasse would leave the Board with only one viable option to seek an amendment to the Condominium documents to ban smoking. The amendment process can be time consuming and challenging to get the requisite percentage of unit owners to consent but the process allows the building owners to decide if they want a no smoking restriction.
Weighing the Liability Risks
What if owners reject the ban? The warring neighbors will still be at odds, and the association will still be caught in the legal crossfire between them. But if the board has made good faith (and documented) efforts to resolve their dispute, if the smoking and non-smoking neighbors have rejected reasonable smoke mitigation measures, and if owners have refused to approve a smoking ban, the board will be able to argue persuasively to a court that it has done everything it has the power to do. This won’t prevent you from being sued, but it will strengthen your defense and increase the likelihood that you will prevail if you are.
The non-smoking Owner may also have individual rights and claims against the smoking owner for nuisance. Second-hand smoke arguably qualifies as both a nuisance and a health risk on which a no smoking court order could be obtained. The operative word, however, is “arguably” as it is a question of fact as to whether the smoke is excessive and constitutes a nuisance.
Although courts in some states have ruled that second-hand smoke in a condominium is a nuisance, the Massachusetts courts have not. So, there is no precedent guaranteeing an owner or board would prevail in court if the owner insists on his right to smoke in his home. While prevailing views today tend to favor non-smokers, there are no guarantees of any outcome and substantial legal expenses may be incurred to address the matter which may not be recoverable.
If you have any questions regarding this topic, please contact Janet Aronson or any MEEB Attorney.