Condominium Smoking War Heats Up in Massachusetts

Published on: February 1, 2010

I am sure that many of you saw the article on the front page of the February 9, 2010 Boston Globe, detailing the status of the South End unit owner’s lawsuit against the smoker that lived beneath her, the Broker that sold her the unit, and the Condominium Board that she believed failed to do anything to stop the smoke (and nicotine smell) from entering her unit and allegedly aggravating her asthma. According to Court records and the Globe Article, most of the parties settled the case, not because they agreed that they were legally responsible for her claims, but because it was cheaper to pay her money than to defend the case. Apparently, the case is going to proceed to trial against the real estate broker. Unfortunately, the blame game is an all too often occurrence in today’s world, and its not easy for condominiums to deal with in today’s difficult economic climate. Not only is litigation costly, it is risky, divisive and under the new FHA, Fannie Mae, Freddie Mac condominium lending guidelines, any litigation can stall sales, loans and refinancing of units at a condominium. Is there anything that condominiums can do to stop the madness?

When it comes to smoking, condominiums can stop it altogether. Lets face it, smoking is simply not popular anymore, not in Massachusetts, anyway, so why do condominiums care? The adverse health effects of smoking and the dangers of second hand smoke have been widely reported and publicized. In fact, in the pending case against the broker, the Plaintiff’s lawyer has asked the Judge to “take judicial notice of the dangers of second hand smoke”, in an effort to avoid presentation of proof and expert testimony on the issue. Whether the dangers of second hand smoke are really so known and established that a Judge can take notice of that as a fact, will be interesting to see (usually Judge’s take notice of established facts, such as the sun rises in the east and sets in the west, etc.). Condominiums can legally amend their Master Deeds to not only ban smoking on the common areas, but in the units as well. Had the South End condominium done so in the case reported in the Globe, there likely would not have been any litigation or cash payouts, at least not over the smoking issue.

The fact is that cities and towns across the country continue to broaden the war on smoking. In October 2007, the City of Belmont, California, enacted a landmark city ordinance banning smoking in all condominium and apartment complexes located within the city. In Hawaii the Attorney General issued an opinion stating that nothing in state or federal law prohibits privately owned condominiums or apartment complexes from renting to nonsmokers exclusively or adopting smoke-free policy for the property. Utah sponsors a Smoke Free Law Project that provides sample anti-smoking policies in leases and condominium documents. As reported in the Boston Globe article, the City of Boston is considering a smoking ban on the City’s public housing projects.

Recently, there was breaking news that a posh high-rise 118-unit condominium complex located in Minnesota passed a by-law amendment (by 77% to 23% vote) banning smoking in all units. While there has been surprisingly little publicity on this issue in Massachusetts (until now), numerous Massachusetts condominiums have gone smokeless. The question for Massachusetts lawyers is whether such a ban is legal and if so how to best effectuate such a ban.

The only reported case in the country directly on point is a 2006 Colorado District Court decision. In that case, a Colorado District Court Judge upheld a by-law amendment enacted by the Heritage Hills Condominium prohibiting smoking anywhere within the boundaries of the four-unit community. Owners of two of the units complained of smoke seeping into their units from one of the four units, occupied by heavy smokers.

When extensive efforts to prevent the smoke from infiltrating the units proved unsuccessful, three of the four unit owners approved an amendment to the condominium declaration, prohibiting smoking anywhere in the community. Litigation ensued, alleging that the association acted capriciously, lacked the authority to prohibit legal activities within residential units, and had not proven that second-hand smoke (rather than simply the smell of smoke) was actually seeping into the other units. The Colorado Court rejected all of their arguments, ruling that:

The efforts by other owners to mitigate the smoke before enacting the by-law demonstrated that the association had not acted “capriciously.”

The association properly based its authority to ban smoking on the anti-nuisance provision in the condominium declaration, which allows the association to prohibit “any practice which interferes with the peaceful possession and proper use of the property by its residents.”

Second-hand smoke qualifies as a nuisance, and “the issue of whether there was actual smoke or simply a smoke smell is irrelevant….”

As for the right to smoke in ones own home, the Colorado Court noted that smoking is not a right protected by the Constitution. The Court noted that Colorado, like many other states, following the trend noted above, has adopted laws designed to protect citizens from the adverse health effects of second-hand smoke in indoor areas. The association’s authority to restrict activities inside residential units is further strengthened in this case, the Colorado Court noted, “where plaintiffs’ private activities are impacting so negatively on the remainder of the community that they chose to join.”

The decision is significant, because it is the first of its kind, but its application is obviously limited since it is not an appellate level decision and was heavily fact specific. Massachusetts Courts, jurists and juries may be inclined to follow the logic in the Colorado case. In 2005 a Boston Housing Court jury ruled that a South Boston couple could be evicted from their rented water-view loft for heavy smoking, even though smoking was allowed in their lease. The jury found that the couple’s heavy smoking violated a more general clause banning ”any nuisance; any offensive noise, odor or fumes; or any hazard to health. Although the verdict, like the Colorado case is not binding on other courts, it certainly suggests that people living in Massachusetts are not inclined to tolerate second hand smoke.

Associations and their practitioners that decide to ban smoking should do so by amending their by-laws rather than by drafting a regulation prohibiting smoking in residences and common areas. It is doubtful that a simple rule or regulation (as opposed to a by-law amendment) would survive judicial scrutiny since it regulates the interior of a unit. See, Johnson v. Keith, 368 Mass. 316 (1975). Obviously, a by-law amendment is more difficult to enact (since it typically requires the approval of at least 75 percent of unit owners and sometimes more, while a board can adopt a rule by majority vote), but a by-law amendment is also easier to defend. Owners challenging a by-law must prove that it is arbitrary and capricious; owners challenging a rule must demonstrate only that it is “unreasonable” — a much lower legal threshold to clear.

In all likelihood the by-law would be difficult to challenge if imposed by the developer at the time of the creation of the Condominium, since all purchasers of condominium buy with knowledge of the smoking prohibition. See, Noble v. Murphy, 34 Mass.App.Ct. 452 (1993)(“persons who contemplate acquisition of a condominium unit can choose whether to buy into those restrictions”). Whether imposed by the developer or a subsequent condominium board, the Condominium Act provides a strong basis for the imposition of rules, regulations and by-laws designed to protect the peaceful enjoyment of the use of units. See, G.L. c. 183A § 11(e).

Savvy condominium boards and practitioners desirous of passing anti-smoking bans are probably best advised to include a grandfather provision for existing smokers, though that certainly would not have helped the South End Condominium that was the subject of the Boston Globe article. Grandfather provisions might make it easier to pass the amendment but it reduces the risk of legal challenge from existing smokers and future purchasers (who buy with notice of the restriction). A grandfather provision was crucial to the passage of the smoking ban at the Minnesota condominium referenced above. Of course, appeasing the smokers does not solve the health and safety problems caused by second hand smoke and potentially puts the association at risk of liability from non-smoking unit owners, as evidenced by the ongoing case.

The fact of the matter is, that Condominiums may need to take a stand and side on this issue. Who is a jury more likely to sympathize with? A smoker who can no longer smoke in his unit, or another unit owner who claims she is being injured and harmed by a smoker and the Condominium Board’s decision not to regulate smoking? If nothing else, Condominium Boards that propose a smoking ban, might find themselves bringing their community together for lively debate on an important health issue. Furthermore, Condominium Boards that at least propose such a ban might also reduce their risk of liability, since all they can do is propose it, but not guarantee its passage, which usually requires a 66% to 75% unit owner vote. In the eyes of a jury it may be better to have at least tried to do something.

Stay tuned as this issue will continue to smolder for months and years to come.

If you would like more information regarding how to legally implement smoking bans send an e-mail to eallcock@meeb.com or any other Massachusetts real estate lawyer at MEEB.