A Man’s Condo Unit May Not Be His Castle For Smoking…
As anti-smoking restrictions become increasingly widespread, smokers find the last place they can indulge freely is within the confines of their home. However, the saying that a man’s home is his castle may not extend to condominiums where condo associations are enacting bans against smoking in common areas and even individual units.
In Chicago, the 1418 N. Lake Shore Drive Condominium Association recently banned smoking in interior common areas and inside the units. Smoking is permitted in a unit, however, if it is restricted to a single room that has been equipped with an association-approved, self-contained air-treatment system. Last year, a Cape Cod condominium considered a smoking ban in living areas.
Smokers will surely cry foul over this, but condominiums are a special kind of property. As Massachusetts courts have ruled, “central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.” Condominium trustees are empowered to enact rules that are “reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.”
With smoking, however, the issue become quite cloudy. Without legal precedent that smoking constitutes a private nuisance – which would give associations a green light to enact indoor smoking bans – an anti-smoking rule which is not made into a formal condominium document amendment may not be enforceable. Recorded amendments typically require 75% unit owner approval, and also give prospective buyers fair warning before they decide to buy a unit. For those associations that can muster a 75% vote, they may on their way to smoke free living bliss…
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