Published on: April 5, 2012
The battle between smokers and non-smokers may be reaching a tipping point in community associations. More boards are introducing master deed or by-law amendments prohibiting smoking completely – in individual units as well as in the common areas of their communities. And those proposals are attracting considerably more support and considerably less opposition than they have in the past.
This is largely a reflection of changing attitudes toward smoking. Only 20 percent of the population nationally (14 percent in Massachusetts) define themselves as smokers, and growing numbers of non-smokers are concerned about the health hazards of exposure to second-hand smoke. A 2006 Surgeon’s General report concluded that “there is no risk-free level of exposure to second-hand smoke,” and that message appears to have taken hold.
Condominium owners who a few years ago would have defended the right of their neighbors to smoke, even if they themselves did not, are now more inclined to support non-smoking neighbors concerned about the smoke that is seeping into their units.
There aren’t any broad-based statistics documenting the trend, but we are regularly fielding calls from associations that have decided to adopt smoking bans or are looking for advice on that process. Some are advertising their smoke-free status on their Web sites, suggesting that they view their smoking ban not as the sales impediment that many condominium owners have traditionally feared, but as a marketing advantage.
Chris Banthin thinks that perception is accurate. An attorney specializing in real estate and condominium law, Banthin has been working with the Public Health Advocacy Institute at Northeastern University School of Law to develop free-market strategies that will reduce smoking and exposure to second-hand smoke ― both major public health concerns. Banthin speaks regularly to community associations about the arguments in favor of smoking bans. The increased value and marketing appeal of those communities are among the benefits he cites.
In a 2008 survey commissioned by the Massachusetts Department of Public Health, 61 percent of the apartment tenants responding said they would support an immediate smoking ban and another 14 percent said they would be neutral on that question; only 25 percent said they would oppose it. More than 90 percent of the tenants currently living in smoke-free buildings said they liked them; only 2 percent objected. Virtually all of the landlords who had banned smoking in their buildings (99 percent) said the ban was not difficult to implement or enforce, had increased demand for their units and had reduced their operating costs.
Perhaps most significant for condominium communities contemplating bans, 43 percent of the respondents shopping for apartments said they would pay more for a smoke-free building, with 26 percent saying they would pay up to 20 percent more, 63 percent willing to pay 10 percent more and 80 percent saying this would be a factor in their selection of an apartment building.
A Choice Either Way
Some condominium owners are still concerned that a smoking ban will reduce the pool of prospective buyers or tenants for their units, but Banthin points out that with non-smokers now significantly outnumbering smokers, smoking restrictions are likely to attract more buyers than they repel. Projecting current trends out five or 10 years, he suggests, the non-smoker to smoker ratio will become even more lopsided, smoking bans will be more widespread, and with fewer options available to them, smokers will concentrate in the remaining buildings that allow smoking. So associations that choose not to adopt smoking bans will be choosing, in effect, to become smokers’ buildings in the future, Banthin contends.
Condominium owners who are willing to tolerate a few smoking neighbors today may feel differently if they find themselves a few years from now in a small minority, vastly outnumbered by residents who smoke. And as the ranks of smokers continue to decline, the pool of potential buyers and tenants interested in smokers’ buildings will shrink as well, giving communities another strong economic argument for going smoke-free.
Those are the arguments Banthin presents to community association board members and owners, and an increasing number of them are finding the arguments persuasive.
It is possible to prohibit smoking by claiming it to be a “nuisance,” in violation of association rules, which the board has the authority to enforce. But this is not an approach we recommend, for several reasons. First, while the board’s authority to regulate activities in common areas is clear, its authority to restrict activities in individual units is both less clear and more restricted.
A Covenant –Not a Rule
The second problem with using a nuisance rule to restrict smoking is the difficulty of defining precisely what a nuisance is. Think of noise as an example. Some people are more sensitive to noise or less tolerant of it than others. The same is true of smoke. Some people are more concerned about second-hand smoke than others. Some find even a trace of smoke intolerable, while others barely notice the odor in a smoke-filled room.
Courts in some jurisdictions have found that second-hand smoke rises to the level of a nuisance or a “trespass” if it exacerbates an underlying health condition (asthma, for example) of those exposed to it. But other courts have also noted a distinction between an annoyance and a nuisance, finding that because a neighbor is annoyed or offended by smoke is not in itself sufficient grounds for prohibiting residents from engaging in a legal activity (smoking) inside their homes.
Boards do not want to wind up in the middle of these disputes, responding to smoking complaints – and the litigation they may trigger – on a case by case basis. Nuisance is simply not a strong enough peg, nor a desirable one, on which to hang a community association’s no-smoking policy. Boards that want to prohibit smoking in individual units should amend the association’s master deed or by-laws, securing the super-majority vote of owners (two-thirds or three quarters in most documents) required to do so.
While the courts have been and remain reluctant to restrict what individuals can do within their own homes, they are less likely to challenge a policy approved by a supermajority of owners in a self-governing community than one imposed by the community’s elected board. Moreover, the courts in Massachusetts and elsewhere have recognized that a community association has the right to change its governing documents and to make those changes retroactive, reasoning that condominium owners buy with the knowledge that the rules in place when they move in may one day be changed.
A Key Decision
In what may be the first court decision addressing the questions raised by a community association’s smoking ban, a Colorado court upheld the policy, rejecting the ‘my-home-is-my-castle’ argument of smokers, who said the ban interfered unfairly and unreasonably with their right to the full use and enjoyment of the unit they owned.
In this 2006 case (Heritage Hill Condo Owners v. Sauve), the court was influenced strongly by evidence that the board had gone to great lengths to find other solutions, short of a ban, that would address the concerns of non-smoking neighbors.
The thinking among association attorneys at the time was that similar efforts to mitigate the effects of second-hand smoke might be necessary, or at least helpful, in defending a smoking ban. But we think the right to amend a community’s master deed or by-laws and to make those changes retroactive is sufficiently well-established to make the extraordinary steps that the Colorado court welcomed unnecessary for condominium communities seeking to ban smoking today. A well-drafted ban, properly enacted (with the required owners’ vote), should stand on its own.
To Grandfather or Not
Some communities include a ‘grandfather” provision exempting current owners from the smoking ban; others go “cold turkey,” prohibiting smoking immediately and with no exceptions, while some wind up in between, grandfathering current residents for a limited period to give them time either to adjust to the policy or move.
We have found that a grandfather provision can make it easier to win owner approval. We also think grandfathering makes it less likely a smoking ban will be challenged and easier to defend if it is. Banthin says he’s seen both approaches – with and without a grandfather provision ― work in different communities, depending in part on the number of current smokers and the number of owners who feel strongly about eliminating second-hand smoke. Boards obviously should get a clear sense of how owners feel about a ban before deciding how or if to proceed with one. And they should gauge not only how owners feel about the ban but the intensity of the feelings on both sides.
A couple of additional points about the grandfather provision. It should apply to the owners or residents occupying the units, not to the units themselves. When current residents move, future residents must abide by the ban. The provision should also address tenants who are renting units as well as owners who are occupying them. The association can require investor owners to begin imposing the no-smoking rule on tenants when an existing lease or rental agreement ends, or when a new tenant replaces existing ones.
Community associations that enact smoking bans will have to consider how to enforce them. We strongly encourage associations to include a provision specifying that:
- While the board may enforce the policy, it is not required to do so; and
- Owners have the authority to pursue complaints on their own, by filing suit, if necessary, against owners who are violating the covenant.
This language makes enforcement of the smoking ban an option, not an obligation, for the board and it is consistent with the governance structure of most condominium communities. Boards are not required to address every violation, large or small; they have the discretion to determine whether and how to enforce association rules. Those decisions can’t be arbitrary or capricious; they must be fair and reasonable, reflecting efforts to act in what board members believe to be the community’s best interests, as required by the “business judgment rule.
The Board’s Discretion
Within that framework, boards don’t have to respond equally to every smoking complaint. They can and should distinguish between the complaint of a pregnant owner concerned about the health impact of second-hand smoke, and the complaint of the owner who says, “I think I smelled smoke last night and I’m pretty sure it was coming from the owner down the hall, and this has nothing to do with the fact that I’ve been fighting with this owner about just about everything for the past 10 years.”
Boards can decide to pursue some complaints while deciding that they don’t have sufficient evidence or sufficient resources to pursue others. The language we suggest to clients clarifies both the board’s discretion and the right of owners individually to enforce the smoking ban. It also specifically prohibits anyone from recovering legal fees or other costs from the board because of its failure to enforce the ban.
Many city and state governments have barred smoking in offices, restaurants and other public places, and it is possible they may eventually bar smoking in multi-family residences, as well, relieving landlords and community associations of the need to do so. A few city and county governments (most of them in California) have already taken that step. Only one state (Utah) has adopted a law affirming the right of rental property owners and community associations to impose smoking bans, but there are no laws or ordinances prohibiting those policies.
The Department of Housing and Urban Development has “strongly encouraged public housing agencies to ban smoking in their buildings, and 50 of them have done so. “When you see a governmental agency encouraging smoke-free policies,” Banthin says, “it’s not hard to see broader governmental regulations coming.”
It is also possible that insurance companies might be persuaded to offer premium reductions on multi-family buildings that adopt no-smoking policies because of the reduced fire risks, an idea that Banthin says he is discussing with a local insurance company, to gauge interest in the idea. “It’s something the Department of Health would love to see,” he notes.
While changes in insurance policies and government regulation may come eventually, Banthin anticipates a more immediate trend: Fair Housing Act complaints filed by non-smokers, seeking accommodations (in the form of smoking bans) based on the adverse health impacts of second-hand smoke. “That’s going to be a powerful concern for condominium associations,” he predicts, and another strong argument for communities to adopt smoking bans.
Those proposals “won’t sell themselves,” Banthin emphasizes. Boards will have to sell the idea to owners, first by educating themselves about the advantages of a ban, and then by educating owners. It won’t be enough just to explain the arguments in favor of a ban, Banthin advises boards. “You will have to make owners care enough about the issue to vote,” he says, and persuade them that the ban is in the long term interests of the community and its residents.