Housing Counsel: Smoking Ban Upheld in One Community Association. Can it Happen in Ann Arbor?

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Question: We own and live in a small condominium association here in the District. The tenant who lives below us is a habitual cigarette smoker and the smoke is somehow entering into our unit.

This is very disturbing, especially since we plan to have a baby soon and do not want the smoke to create any health problems for us.

What can we do?

Answer: If you lived in Colorado, your Association could enact an amendment to your legal documents which prohibits smoking in the entire building, including the individual units.

In November of last year, Jefferson County District Court Judge Oeffler, upheld such an amendment.

In a four unit condominium, Colleen Christiansen and her husband Roger Sauve owned unit 2. They were smokers. Two other unit owners (or their tenants) did not smoke, and the fourth owner admitted that she did smoke cigarettes, but only outside of the building.

The three owners had serious discussions with Colleen and Roger, trying to convince them only to smoke outside in the open air, but were consistently rebuffed. The other owners tried a number of methods to curtail the smoke -- such as installing ionic breeze air filters in the air ducts and installing foaming insulation -- but without success.

Finally, the association amended its Declaration (one of the legal documents that creates a condominium), with the following language:

Smoking shall mean and include the inhaling, exhaling, burning or carrying of any lighted cigarette, cigar or other tobacco product, marijuana or illegal substance.

No Owner, Guest, family member, tenant, resident, business invitee or visitor shall smoke cigarettes ... within the boundaries of the Project. This prohibition shall include all Unit interiors, Common Elements And Limited Common Elements in the Project.

In order to properly amend the Declaration, a 75 percent majority was required, and three of the four owners voted in favor of the amendment. Colleen and Roger filed suit to enjoin the enforcement of this new requirement, claiming -- among other things -- that the Association had no legal right to interfere with what is done within the unit itself.

Judge Oeffler disagreed. After a two day trial, the Judge affirmed the validity of the amendment. Three factors were considered by the Court:

Was the amendment reasonable? The Judge relied on a general rule of community associations that “anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.”

Stated in simple English: if you own property in a community association, you are bound not only by the existing rules and regulations, but on any new procedure which is legitimately enacted by the requisite majority of the owners. In this case, the Declaration required a super majority of 75 percent in order for an amendment to be valid, and three of the four units owners properly voted for that smoking prohibition.

The Court ducked the issue of whether second hand smoke was a health hazard. Instead, the Judge looked to the legal documents and discovered that they included a prohibition against nuisance. The Judge found the following language in the Declaration significant:

... nor shall any practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents.”

Based on the testimony of the three owners, the Judge said that “the issue of whether there was actual smoke or simply a smoke smell is irrelevant... Clearly, the smoke smell constitutes a nuisance under these circumstances”.

Accordingly, the amendment was reasonable.

Was the amendment made in good faith and not arbitrary and capricious? Once again, the Court relied on the testimony that thousands of dollars were spent trying to alleviate the problem, without success. Additionally, the three owners tried unsuccessfully to reach a consensus with the smokers. Finally, as a last resort, the amendment was proposed and validly adopted.

Did the smoking ban violate any public policy? The Judge took into consideration the fact that the Colorado legislature had previously enacted laws dealing with smoking and thus the amendment was consistent with public policy of the State.

Finally, the Judge dismissed the argument that the ban was unconstitutional. According to the Judge, “Courts have not specifically extended the protections of the Fourteenth Amendment to a fundamental right to smoke ... . This is especially true here where plaintiff’s private activities are impacting so negatively on the remainder of the community that they chose to join.”

Tom Hindman, the Colorado attorney whose law firm represented the association, has advised me that the case was never appealed. Accordingly, even though it is a decision of a lower (trial) court, it stands as good law in the State of Colorado.

Does that mean that your association could similarly adopt such an amendment? The Jury is still out on this question. The facts are quite specific to that case: a small, four-unit building, attempts to negotiate a resolution with the smokers were unsuccessful, and lots of dollars were spent in an effort to curb the smoke. All of these facts took place before the amendment was even proposed.

Nevertheless, it remains an option for Boards of Directors to consider. What is clear, however, is that any such prohibition must be accomplished by an amendment to the association’s Bylaws or Declaration; the Board cannot impose a smoking ban simply by adoption of a Rule or Regulation.
This is a highly controversial – and emotional – issue. Indeed, at an earlier meeting of the Colorado condominium association where this issue was discussed, the police had to be called to stop the heated debate and the allegations of harassment and abuse.

Full and open discussions must take place with all unit owners – smokers and non-smokers alike. Perhaps some compromise can be reached – such as allowing smoking in designated areas. In older buildings, structural engineers should be retained to investigate and recommend possible solutions.

But when all else fails, perhaps the amendment process will fly in the jurisdiction where your condominium is located.

Written by Benny L. Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of Kass, Mitek & Kass, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

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