An estimated 24.8 million men and 21.1 million women in the United States are smokers. That equals approximately 23% of men and a little more than 18% of women in America. “First hand smoke” is the smoke inhaled by the smoker. “Second hand smoke” is the smoke inhaled by individuals near the smoker. In addition, experts have recently used the term “third hand smoke,” which is the invisible toxic gases and particles that cling to the smoker’s hair and clothing, as well as, fabrics of curtains, furniture, and carpeting. Children are especially susceptible to third hand smoke, even if the windows in the car or home are open when smoking.
Considering the health risks not only to the smoker, but to family members and others, it is not surprising that some condominiums have decided to ban smoking from the condominium property. Condominium units are in close proximity to one another with shared walls and HVAC ducts. When a Unit owner smokes within a condominium unit, neighbors on either side will most likely be sharing that cigarette or cigar through second hand smoke. It is common for a unit owner to complain of smoke drifting through the wall or ceiling or air vents.
The condominium association could have liability based on claims by owners and other residents for negligence, trespass, nuisance, breach of quiet enjoyment, or injunctive relief.
The condominium association has a duty to enforce the restrictions and rules/regulations of the condominium pursuant to the Declaration and Bylaws. Most condominiums have a clause within the Declaration and Bylaws which prohibit nuisances within the community. This nuisance provision normally relates to loud music or disruptive behavior but can also pertain to other nuisances within the condominium, such as smoke. The association has a responsibility to deter smoke from entering a nearby unit and the common elements of the condominium property which may include areas such as a hallway, elevator, or lobby. The Association should immediately take measures to abate the problem of smoke drifting into the common elements and adjacent units. The difficulty is that even with the association taking precise measures such as caulking baseboards or providing air purification filters for each unit’s HVAC system, there is no way to completely eradicate smoke from entering another area of the building.
The condominium association, through its board of directors, has the authority within the Ohio condominium statute to adopt rules and regulations that affect the use or occupancy of units, or the maintenance, repair, replacement, appearance, and modification of units, the common elements, or limited common elements when the actions regulated by those rules effect common elements or other units. Using these statutory provisions, the association may make rules and regulations which limit the areas in which an owner, guests, or tenants may smoke or ban smoking entirely within the condominium property, including the condominium unit.
Residents opposing a smoking ban may argue that they have a right to smoke within the unit because it is their home and only they can ban smoking within their home. Arguments by smokers stating they must smoke because they are addicted to nicotine and other substances found in cigarettes are not grounded in law. There is no protected right to smoke in Ohio although smoking is legal. Rules or an amendment to the Declaration which bans smoking would be upheld under Ohio case law such as Worthinglen Condo v. Brown, which held that condominium living requires an owner to relinquish some freedoms in exchange for the benefits of living in a condominium.
Opposition to a smoking ban may be addressed by allowing current smoking owners to smoke in the unit until such time as the owner sells the unit; however, this “grandfathering” is not effective in dealing with current problems associated with smoke entering an adjacent unit. A better way to make the rule or amendment banning smoking reasonable is to provide a future date at which time the rule or amendment will take effect.
If the association decides to limit or ban smoking within the condominium by using a rule or series of rules adopted by the board of directors, the association should provide written notice to all of the owners and residents, and allow at least thirty (30) days before the rule goes into effect. This provides all owners and residents with sufficient notice regarding the new rule. In addition to providing notice of the new rule, the board of directors should also post “no smoking” signs and be sure to react quickly to any violations by levying enforcement assessments if necessary.
The problem with adopting a no smoking rule is that potential purchasers of a condominium unit will not be on notice of the rules and regulations of the community. Most potential buyers of a condominium review the condominium documents; however, it is few and far between who are provided a copy of the community rules and regulations prior to purchasing a unit. The best way to ensure that potential buyers are on notice of the smoke-free condominium, is to record an amendment with the county in which the condominium is located.
An amendment to the Declaration and Bylaws usually requires seventy-five percent (75%) owner approval in order to pass and record the amendment. Each community should review the Declaration and Bylaws to find out what percentage of ownership approval is required for an amendment. The amendment, as with the rules and regulations, should be specific as to what defines “smoking,” the areas where smoking will be permitted, if any, and provide a future date as to when the amendment will take effect in order to meet reasonableness standards under Ohio law.
