Thursday, July 1, 2010

Can your condominium association prevent you from smoking in your unit?

There is longstanding caselaw in our State confirming that your house may be your castle but owners in common interest ownership communities give up certain rights when they agree to be bound by the terms and provisions of the community’s governing documents. Whether you like it or not, agree or disagree, the fact remains that those living in condominiums are more highly regulated than other real property owners in terms of what they can and can’t do in their units.

Condominium owners can be prevented from having pets in their units, running businesses out of those units and placing certain items on their balconies. The question in today’s blog is whether or not those owners can be prohibited from smoking in their units if that smoke is finding its way into neighboring units and/or the hallways and other common elements. Every condominium declaration I’ve ever read contains a provision preventing owners from creating nuisances in their units which disturbs other owners’ quiet enjoyment of their property. There have been cases throughout the country which involve condominium owners suing neighbors and/or their association from smoke entering their units via air conditioning ducts, electrical outlets and/or poorly sealed or open windows and doors. In some instances, these suits have been successful after owners have shown that every effort to prevent the smoke’s entry into their homes (installing air filters, sealing windows and doors, etc.) have been unsuccessful, thereby requiring that the neighboring smoker be banned from indulging inside their property.

As far as common areas are concerned, Florida’s Clean Indoor Air Act would support an association’s ban on smoking in the Clubhouse, lobby, etc. because those areas constitute the “workplace” for association employees who maintain those areas. However, the units are private property so what is an association to do? Some communities have amended their documents to add smoking inside the units to the list of prohibited activities. Should current smokers be grandfathered in should such an amendment pass? It is common knowledge that smoking cessation is not an easy feat for long-term smokers. On the flip side, some owners with particular sensitivities to smoke are claiming that such a ban is required to reasonably accommodate their lifestyle needs.

This issue is not an easy one. Smokers are owners and enjoy the same real property rights as non-smokers. However, unwelcome smoke entering a unit is not only a nuisance but a known health risk. There will undoubtedly be more cases in the future on this issue and further clarification of where the courts, smokers and non-smokers stand.

2 comments:

  1. It'll be interesting to watch the national trend on this issue in community associations and whether it tracks the trend towards "marginalizing" smokers/smoking in general. Washington's law appears to mirror Florida's - banning smoking in your unit is a restriction on use that must be in the CC&Rs or Declaration in order to be enforced against an owner. Alternatively, a neighbor may have a nuisance claim (both against the smoker AND the association for failure to act!) if an owner's smoking habit creates a nuisances in a neighboring unit.

    I'm glad to find your blog and look forward to following your posts!

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  2. Recently, the neighboring Condo was sold. The individual that purchased the Condo is a very heavy smoker. My problem is twofold; 1. Our Condo has 3 floors, the top being the bedrooms. Our bedroom and adjoining bath reaks with cigarette smoke since this person moved in 6 months ago. I immediately called and discussed this problem with the new tenant. The reply was I'm sorry and will try not to smoke upstairs. Now the smell of cigarettes is on all three levels. I have owned and resided in my Condo for 18+ years and have NEVER experienced anything like this. We smell it in the HVAC, as well as, the bathroom drains. Problem 2. I've had to see a lung specialist for the first time in my life because I seem to be having Asthma symptoms. I'm now using an inhaler to help my breathing, but all I smell is Cigarette smoke. Our Condo has 4 units, therfore, we are a very small Association. The owners on the other adjoining side has a family member on Oxygen for the past 7 years. This is a huge concern considering she has "No Smoking" on both of her doors, not to mention the fact the have a huge Oxygen tank in their home.

    I definitely am not one that interferes with peoples personal lives, however, this has greatly become a personal issue for me. I am at a loss on resolving this problem. Any recommendations would be greatly appreciated on what other courses of action l may have other than Sale my Condo after 18 years. Thank you in advance for your comments.

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