Up in Smoke - Associations Must Balance Competing Ownership Rights
By: Nena Groskind

Rules prohibiting smoking in common areas are common and rarely questioned. It is when associations move to prohibit owners from smoking within the confines of their homes – or decline to do so – that tempers flare and litigation often results. New England courts haven’t yet considered suits asserting or challenging the authority of associations to ban smoking entirely within common interest ownership communities, but court decisions in other jurisdictions provide an informative window on the legal issues involved.
In what is widely viewed as a seminal ruling, a Colorado District Court held that the smell of second-hand smoke and its seepage into the unit of a non-smoker represented a nuisance, justifying the community association’s approval of a by-law amendment barring smoking in all units. The smokers in this case 2006 case (Heritage Hill Condo Owners v. Sauve), who occupied one of the four units in the community, challenged the ban, approved by the other three owners, arguing that it improperly interfered with their right to conduct legal activities within their home. But the court likened smoking to “excessively loud noise.” Like noise, the court said, smoke can’t be confined within a unit and can create a nuisance for others that the association had the authority to regulate.

No Right to Smoke
While smoking is not illegal, the Colorado court agreed, there is “no constitutional right to smoke,” and that fact weighed heavily in this case, the court said, “where plaintiffs’ activities are impacting so negatively on the remainder of the community they chose to join.”
In another case decided earlier this year, a California appeals court concluded similarly that smoking constituted both a public nuisance, under a local ordinance, and a private nuisance under the condominium documents. The plaintiff in Birke v.Oakwood Worldwide was a child (Melinda Birke), who suffered allergic reactions when exposed to second-hand smoke. The suit, filed by Melinda’s father on her behalf, argued that the association had an obligation to ban smoking in common areas, including around the pool, where smoking was permitted. Failure to do so, the suit contended, made it impossible for Melinda to enjoy the amenities to which she was entitled as a resident.
The trial court ruled against her, finding that the second-hand smoke to which Melinda was exposed was not extraordinary and did not rise to the level of a nuisance, but the appeals court disagreed. Smoking in this case did constitute a nuisance, the court said, but “the issue is not whether Oakwood has a duty to ban smoking,” the court added. The issue rather is whether the failure to limit smoking in common areas “that Melinda has a right to use and enjoy,” breached the association’s “indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition.”
Grounds for Eviction
Although courts in New England, as noted earlier, have not addressed complaints about smoking in condominiums, the Boston Housing Court ruled four years ago that apartment tenants could be evicted because their extremely heavy smoking constituted a nuisance for other residents. Although the lease permitted smoking, the court noted, it also prohibited “any nuisance, any offensive noise, odor or fumes; or any hazard to health,” providing grounds for eviction. (A Florida court concluded similarly that excessive smoking went beyond “mere inconvenience or customary conduct,” constituting a “private nuisance,” “trespass” and a “breach of quiet enjoyment” for which the affected neighbors should be compensated.)
While the Boston Housing Court decision raised eyebrows in legal circles, it has not spurred similar challenges in community associations. And if the litigation in other parts of the country suggests the beginning of a trend, it is a trend that, apparently, has not yet reached New England. The association managers and attorneys we contacted, in an admittedly limited survey, said complaints about second-hand smoke surface occasionally, but they don’t represent a major concern for most communities.
The number of smokers in a community obviously has some bearing on the number of complaints. “Ninety-nine percent of the residents in our communities don’t smoke,” Rosemary Weymouth, CMCA, PCAM, at Megunticook Management in Camden, ME, says, “and those who do usually walk around outside instead of smoking in their units.” It is not, she says, tongue-in-cheek, “a burning issue for us.”
The problem usually surfaces, if at all, in older buildings with shared heating systems and less advanced ventilation equipment, where smoke is more likely to migrate from one unit to another. When smoking is a concern, “people will usually work with their neighbors” to find solutions, Marian Servidio, CMCA, AMS, principal in Park Place Management in Burlington, Vermont, has found. Creative problem-solving from the board can also help.
In one of Servidio’s communities, smokers congregated outside the entrance to the building; every time the door opened, smoke filtered into the lobby, triggering complaints from non-smokers. The board solved the problem by installing a bench and a large receptacle across from the driveway, and adopting a rule prohibiting smoking within 25 feet of the front door. “We were able to give smokers an alternative place to smoke without interfering with others,” Servidio says.

Compliance without Rulemaking
David Abel, CMCA, at First Realty Management in Boston, had a similar problem in one of his communities, where residents smoked in the courtyard, sending smoke wafting through the windows of nearby units and leaving cigarette butts on the ground. When other owners complained, “the board knew they could adopt a rule prohibiting smoking in the common area,” Abel says, “but they preferred not to do that.” Instead, the trustees circulated a letter telling residents if they continued to smoke in the courtyard, the board would approve a rule prohibiting it. That had the desired effect, Abel says. The board achieved compliance with a rule without actually having to adopt one.
When a smoker and non-smoker squared off in another community, Abel says, that board, too, sought to avoid rule-making. “They didn’t try to legislate – they approached the problem pragmatically,” prevailing on the smoking neighbor to seal outlets in the connecting wall. “I don’t know if that solution was perfect,” Abel says, “but it was effective enough so the [non-smoking] neighbor stopped complaining.”
Solutions aren’t always easy. Eliminating smoke seepage in another building required pulling down the sheetrock and installing a high-quality plastic seal to create a barrier – work for which the smoker agreed to pay. “Some people will fight,” Abel says, “but others will decide it’s worth $1,000 or more to avoid litigation. If people are cooperative,” he adds, “there is almost always a way to resolve the problem.”
An Untenable Position
Of course owners are not always cooperative, as anyone who has lived in a community association or worked with one will attest. When an inconsiderate “my-home-is-my-castle” smoker clashes with a highly sensitive (or allergic) non-smoker, boards find themselves “between a rock and a hard place,” notes Patrick Brady, an associate in the Massachusetts law firm Marcus, Errico, Emmer & Brooks, who has advised many association clients on the handling of these disputes. “If you tell the smokers they can’t smoke, they may sue,” he notes. “And if you say the board can’t prohibit smoking [within an owner’s unit], the people who object to the smoke may sue.”
Although Brady agrees that smoking complaints are not widespread, they are arising frequently enough, and pose sufficiently troubling legal questions, that he has put the issue on the agenda of an upcoming meeting of CAINE’s Attorneys’ Committee, which he co-chairs.
Smoking gets most of the attention in the media these days, but it is not the only source of disputes over air quality in community associations; cooking odors trigger similar complaints, with curry ranking high on the list of ingredients most likely to offend. Owners in one condominium community Brady represented complained that the hallway “reeked for days” after tenants renting one of the units cooked with curry, which they did frequently. The board installed a fan in the hallway to deal with the problem, but removed it when the tenants – natives of India – threatened to file a discrimination complaint.
The association didn’t want to get involved in a costly discrimination battle, Brady explains, and the board’s options were limited. “You can’t tell someone they can’t cook the foods they like because their neighbors don’t like the smell.”
Rules prohibiting smoking provoke similar arguments from smokers, who say their right to smoke should not be limited because others are offended by the odor. But there is a crucial difference, notes Brian Martin, an attorney with Hindman-Sanchez in Arvada, Colorado, who successfully defended the smoking ban in Heritage Hill v. Sauve, the Colorado case noted earlier. Second-hand smoke is a proven health hazard, Martin points out; cooking odors, on the other hand “don’t typically trigger an asthma attack.”
Uncertain Authority
Still, there are questions about how far associations can go in restricting what owners can do in their homes, and equally perplexing questions about how, if at all, they should exercise the authority they have. While a board’s authority to regulate activity in common areas is clear, its ability to govern behavior within owners’ homes is limited. For that reason, most attorneys specializing in condominium law agree that boards contemplating smoking restrictions beyond the common areas should seek to do so not by adopting a rule (which the board can do on its own authority) but by amending the community’s by-laws, which in New England associations, typically requires the approval of 75 percent or more of the owners.
Attorneys also agree that communities contemplating bans should proceed cautiously. In the court decisions upholding smoking bans, the associations involved have typically approved the restrictions only after extensive efforts to address second hand smoke concerns through other means have failed. In the Colorado case, Martin notes, the association’s documented smoke mitigation efforts supported the argument that its ban was not “arbitrary and capricious” as the plaintiffs contended, but was, in fact, thoughtful, deliberate, and adopted as a last resort. That’s a message other associations should heed, Martin suggests. “If the board sits on its hands and [makes no effort] to mediate smoking disputes, it’s not going to look good.”
David Barrett, AMS, PCAM, at American Properties Team in Woburn, MA, thinks “sitting on its hands” may be the appropriate response for boards in some situations. “It’s really touchy when you start talking about what owners can do in their units,” he says. “If enough owners are complaining [about second-hand smoke], the board does have an obligation to respond,” he agrees. But if one neighbor is insisting on his right to smoke and another is insisting on his right not to breathe the smoke created, then, Barrett contends, “it shouldn’t be on the association to resolve the problem.” The owners involved should try to find a solution; if they can’t, Barrett says, they can go to court and have a judge decide whose rights should prevail.
Barrett has both philosophical and practical concerns about broad smoking restrictions. The philosophical concern: Smokers and non-smokers both have ownership rights. Restricting what any owners can do in their units, he says, “raises very tricky issues. I worry about over-regulating everything.” His pragmatic concern is the enforceability of any restrictions the association adopts. How, he asks, would an association enforce a ban on smoking inside owner’s units? “You don’t want to turn board members or managers into the smoking police,” he says. “What are they going to do? Sit in owners’ living rooms every night and make sure they don’t light up?”
Smoking bans represent one response to smoking-related complaints, but not the only one. All communities are different, Martin suggests, and the board’s response should reflect those differences. Ultimately, Martins says, it is the residents of the community who should decide how they want to deal with smoking, by voting on a by-law amendment to prohibit it.
The Heritage Hill decision, upholding that association’s smoking ban, provoked a backlash in the national press, Martin notes, with critics railing against “big, bad homeowner associations” trampling on the rights of owners. “Those complaints missed the point completely,” Martin argues. It wasn’t a matter of a board adopting a no-smoking rule; “it was a matter of people in a community having the right to chose how they will be governed. If owners want their community to be smoke-free,” Martin says, “they have the right to make that decision.”
Owners also have the right to reject smoking bans, which at least two communities Brady represents have done, somewhat to his surprise. In both cases, he says, the owners, a majority of whom were non-smokers, objected to restricting what owners could do in their homes.
Owners clearly have the right to approve rules governing their community, or not. But the established health risks of second hand smoke put smoking in a special category, creating potential liability risks for associations that reject proposed restrictions. Owners harmed by a neighbor’s smoking might well sue the association, arguing that it had not just the option, but the obligation to prohibit harmful activities.
Liability Concerns
Such litigation is possible, Brady acknowledges. “But in order to be liable,” he notes, “the board would have to be found negligent.” Boards that take reasonable steps to respond to complaints about second-hand smoke, he believes, will have a reasonable defense against those claims. Toward that end, Brady suggests, boards should:
• Take complaints about smoking seriously;
• Work with the owners involved in the dispute to find smoke mitigation measures, offering, if necessary, to pay, or help pay, for those solutions; and, if these steps don’t resolve the problem
• Let owners vote on a by-law amendment prohibiting smoking in the community.
If owners reject the amendment, Brady says, the board can argue credibly, “We have done everything we had the legal authority to do.”
Whether that argument will prevail against an owner claiming severe health problems caused by the second-hand smoke of a neighbor remains to be tested. Martin says he expects to see more suits filed under the Fair Housing Act, demanding that associations provide accommodations or modifications for disabilities caused or aggravated by second-hand smoke. And these suits may prove even more difficult for community associations to defend.
Although the legal winds have been strongly favoring non-smokers, the past may not prove to be prologue as the law in this area continues to evolve. Stephen Marcus, a partner in Marcus, Errico, Emmer & Brooks notes: “It is impossible to predict how much liability, if any, courts in Massachusetts and other jurisdictions will impose on community associations, nor can we predict what ‘reasonable accommodations,’ if any, courts may require associations to provide under state and federal fair housing laws.” But there is no question, Marcus agrees, that boards will see more disputes over second-hand smoke, and, he says, they will have to find ways to deal “proactively” and even-handedly with these clashes.
Courts may continue to “elevate the rights of non-smokers over smokers,” Marcus suggests, but within community associations, “boards must find ways to respect the feelings of smokers, even as they recognize the rights and health concerns of non-smokers. This balancing act won’t be easy,” he acknowledges, “but in the interest of resolving potentially divisive conflicts and preserving a sense of community among residents, it will be essential.” 