Page 5 - New England Condominium April 2020

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -APRIL 2020 5 QUESTIONS & ANSWERS Legal Q A& No Escape from Smoke Q We live in a 60-unit condomini- um in Massachusetts and share a common balcony with our next- door neighbors, divided by just a short rail- ing. I have a sensitivity to cigarette smoke, and I don’t think it’s fair that the building allows smoking on the balconies. I have my door and windows open when It’s nice out, but I have to close them when people go out and smoke on the neighboring balcony. To make matters worse, when it rains, they smoke inside and the smoke comes through the walls. Is there anything we can do to ban smoking on shared balconies? If so, how would the association go about doing that? —Looking for Clean Air A “Based upon extensive re- search available on the sub- ject today, it is clear that smoking presents a serious health concern and nuisance,” says Scott Eriksen, partner at Perkins & Anctil, PC in Westford, Mas- sachusetts. “Secondhand tobacco smoke in the Boston area, cited the cost benefi ts of support for an amendment. We have found contains dozens of compounds which are reduced maintenance of common area air that associations who engage the ownership known to be or are probable human carcin- ogens, and is itself classifi ed as ‘Class A’ car- cinogen by the United States Environmental Protection Agency. In light of this informa- tion, over the last two decades, there have enforceable no smoking policy, the board reasonable level of support for adopting been many changes to both public and pri- vate policies in regards to smoking. From lowing steps: the workplace to airports to restaurants and other gathering places, many government restriction, an eff ective smoking policy may policy, the scope and eff ect of the policy, entities and public and private organiza- tions have introduced a ban on smoking. “How to handle smoking at condomini- ums, particularly apartment-style or town- house buildings, has also been a hot topic of use of the common elements (and thus may board does not make any warranties that late. Secondhand smoke can drift through be able to eff ectively restrict or ban smok- common walls and ventilation systems and ing in common areas); however, restrictions smoke, even aft er the policy is implement- contaminate air in common areas and indi- vidual units. In addition to the health is- sues, a number of our clients have sought to tail a vote of at least a majority or superma- implement smoking bans to reduce the risk jority unit owners (depending on the docu- of accidental fi res and/or to eliminate waste ments). If the proposed policy is intended that go both ways as to this issue – that is, from improperly discarded and unsightly to ban smoking outright, the fi rst step that amendments with limited grandfathering cigarette butts. One of our larger associa- tion clients, an apartment-style community vey of the ownership to gauge the level of ducts and ventilation systems as a reason early in the process have a better chance for imposing restrictions. “Based on our experience, we believe amendment. that in order to implement an eff ective and (or concerned owners) should take the fol- “Depending on the scope of the proposed have to clearly defi ne the purpose of the require an amendment to the Master Deed designated smoking areas (if any), as well or Declaration of Trust/Bylaws. In Massa- chusetts, condominium boards generally Communities may also want to consider have authority to make rules regarding the incorporating a disclaimer to state that the on the use of units will likely require an ed, and to determine whether “grandfather- amendment which almost certainly will en- the association may wish to take is a sur- of obtaining the necessary votes to pass an “Assuming that the survey indicates a a policy, the next step is to prepare a draft amendment (or rule). Th e board would as compliance and enforcement provisions. the premises will be free from secondhand ing” for current smokers is appropriate (or politically necessary to secure the requisite votes). We have prepared amendments provisions and amendments without any continued on page 10