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A Burning Issue Condos Consider In-Unit Smoking Bans

The late 1990s saw a surge of nationwide smoking restrictions put into effect. State by state, smoking ban legislation was proposed, put to a vote and passed into law. No public dwelling seemed untouched, including the workplace, shops, theaters, favorite restaurants and bars.

Of late, smoking bans have targeted an area few thought they would – private homes, specifically condominium units. Unlike previous bans, no government intervention is being sought to secure smoke-free condominiums. Community associations are weighing the legal, moral and economic repercussions of such a decision and sometimes choosing a self-enacted smoking ban.

Questions seem to abound. Is it morally right to impose restrictions on neighbors’ and friends’ private residences? How will such decisions impact the condominium community’s cohesiveness? Will placing restrictions on units prove to be an economically sound idea, and how will it affect the resale value of units? And most important, is it legal and constitutional?

Is It Legal?

Most condominium owners and associations are unclear as to what is legally within their rights in instituting smoking restrictions. Confusion comes into play due in part to most state statutes giving associations virtually free rein on common areas but less ability to infringe or place restrictions on private units.

So what is the legality of placing smoking bans on private units? Simply put, “It is completely legal,” states Seth Emmer, a partner at the law firm Marcus, Errico, Emmer & Brooks, PC, in Braintree, Massachusetts. “The process would typically not start with the board but with the owners themselves. Unit owners would need to propose an amendment [banning smoking] to the master deed,” explains Emmer. “A proposed amendment would be drafted and then voted on by the community.”

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