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.
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