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Smokin’ in the Condo

Imagine if someone told Don Draper and Roger Sterling of Mad Men that they could no longer smoke in their apartments. They would look at you curiously, smirk and light up a cigarette. But Mad Men, the television show about a Madison Avenue advertising agency is set in 1965 and as the ad for Virginia Slims said, “[we’ve] come a long way, baby.” Almost half of all adults smoked in 1965 but that percentage has dropped to 18% by 2012.

The negative health effects have been documented and the reported adverse health effects caused by second-hand smoke has resulted in smoking bans in restaurants. One of the next areas in which smoking bans have been put in place is in condominium communities. Some of the smoking bans address common elements only but others have imposed a ban on smoking in the condominium unit.

Smoking bans have been implemented to deal with the issue of second-hand smoke seeping into neighboring units. A 2006 Colorado court upheld a smoking ban by determining that the second-hand smoke was a nuisance. This case involved a 4-unit condominium. Three of the four owners voted in favor of amending the bylaws to provide that “[n]o nuisance shall be allowed upon the Property, nor shall any use or 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 resident.”

Subsequently, the condominium association sent a letter to the offending unit owner (not surprisingly, the only owner who did not vote in favor of the amendment) citing the new prohibition in the bylaws; demanding that the owner stop smoking in the unit and anywhere else on the condominium property; and informing the unit owner that fines may be levied. The unit owner filed a lawsuit against the association claiming that the amendment of the bylaws was prohibited; that it was against public policy; and that smoking was not a nuisance. The court ruled against the unit owner, specifically finding, that there was a constant smell of smoke that constituted a nuisance.

In lawsuits by tenants against landlords and neighbor versus neighbor, courts in New York, Massachusetts, California, Ohio, Oregon and Florida have ruled that second-hand smoke is a nuisance; that it may effect the habitability of a dwelling; that it interferes with one’s right to quiet enjoyment of their residence; and that it may constitute a trespass.

No Virginia courts have addressed smoking bans in condominium units, but we will keep you informed. Has your HOA tried to ban smoking? We would like to know about it and hear about the process you or your association used.

Tarley Robinson, PLC, Attorneys and Counsellors at Law, Williamsburg, VA

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Susan Tarley

Susan chairs the firm's common interest community (HOAs and Condos) practice area. She was admitted into the College of Community Association Attorneys (“CCAL”). Susan is one of fewer than 150 attorneys nationwide to be admitted to CCAL, for distinguishing herself through contributions to the evolution or practice of community association law.

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