Smoking poses obvious fire risks and insurance costs to association and apartment communities. In addition to the fire risks, there are certain health risks to community residents, as well as increased complaints from non-smoking residents. With the aim to not only prevent fires and reduce health problems, but also to increase property values, some boards are seeking to prevent unit owners and their guests from lighting up in their communities. It seems they have heeded the warnings of that famous icon, Smokey the Bear, “Remember… Only YOU Can Prevent Forest Fires.”
Some boards feel that putting an end to smoking in common areas is enough, while others try to prohibit smoking in members’ units. Whether a board has authority to regulate this type of behavior within the association will depend on the governing documents and by-laws. It may also depend on the particular circumstances and how other unit owners are affected. If a community is comprised of single-family homes on large lots, then a board likely does not have a valid reason to ban smoking in its members’ units. Regulating smoking within members’ units may be more reasonable where the community consists of units that share a common ventilation system, such as a high-rise building, or if the units share common walls.
Boards may base the ban on nuisance provisions in the governing documents. Many, if not most, associations’ governing documents ban members from doing things that would be a nuisance or annoyance to others in the community. Secondhand smoke is a known carcinogen, and smoking in common areas, where members congregate, is certainly an annoyance to members who do not smoke and may fall within the legal definition of “nuisance.” In communities where members’ units share common walls or ventilation systems, smoking may be a nuisance even when confined to a member’s unit, because smoke often seeps through the walls.
Some municipalities have even passed ordinances preventing condominium and apartment residents from smoking in their units. The City of Larkspur, California adopted an ordinance in 2011 which bars residents from lighting up in most condominium and apartment units. County officials have said that the smoking crackdown is necessary to “preserve healthy communities.”
These measures taken by municipalities and condominium boards may be applauded by some residents, yet scorned by others. There may be a certain feeling of intrusiveness when the effects are felt in the privacy of our own homes. However, it must be remembered that condominium associations are communities where the board of directors have fiduciary duties to the residents. If things happening in the community jeopardizes the health and safety of the other residents, then the board of directors may have an obligation to take action. Whatever the board’s justification, a smoking ban will serve to reduce the risk of fire and smoke damage that can be the subject of insurance claims.
