Condominium Associations

Snuffing out the smokers in condominium

Even as of a few years ago, it was almost unheard of for a condominium building to go nonsmoking. Apparently there was fear that in doing so, property values would suffer as potential smoker purchasers would look elsewhere. This is no longer the case.

We are seeing more and more condominiums going to nonsmoking. To do so, enforcing a house rule passed by the board of directors of the association would be difficult as such a rule would arguably be considered unreasonable to many owners (especially smokers). Under the law, board rules must be.

However, if the owners in the building vote to amend their Declaration of Condominium to go nonsmoking, such a regulation is enforceable as such a regulation would not be considered arbitrary, capricious or unconstitutional even though arguably unreasonable. Declaration covenants, because they are approved by the owners, can be unreasonable as long as they are not arbitrary, capricious or unconstitutional.

The biggest problems most buildings see with smoking is residents smoking on their lanais where the smoke creeps to other lanais and units making it difficult for neighboring residents to enjoy their units and lanais when the smokers are smoking around them. Another problem is that when heavy smokers smoke inside their unit, the smoke can travel through the walls to adjacent units.

Therefore, most amendments will prohibit smoking in the units, on the lanais, or anywhere on the common elements except at smoking area(s) designated by the board of directors from time to time. It is good to have one or more designated smoking areas somewhere on the common areas (usually in the pool or barbecue vicinity) so even if the owners in the building may not smoke, there will be a place for their guests and tenants to smoke where nonsmokers will not be bothered.

To get such an amendment approved in buildings that do have quite a few owners who smoke, a building might want to grandfather allowing smokers in residence to continue to allow them to smoke in their units or on their lanais, until they move away, as long as they don’t unreasonably disturb their neighbors with their smoking.

Apparently going to no-smoking buildings does not appear to be hurting property values and more and more condominium buildings are saying it is now time to go no-smoking for the benefit of the large majority of nonsmokers in the buildings.

First it was airplanes, then indoor restaurants and bars, and now it looks like condominium buildings where people live in proximity to each other. We understand that many new apartment complexes in some cities are now opening as nonsmoking for the same reasons.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.