In a movement to protect the populace from second-hand smoke, municipal  governments are coming up with increasingly-strict bans on smoking in public  places—even on streets, as evidenced in some California communities. Not surprisingly,  more and more condominium associations are following suit.  

 “The general trend,” reports Stephen Marcus, a principal in the Braintree, Massachusetts-based law  firm of Marcus, Errico, Emmer & Brooks, “is that non-smokers are getting more assertive about banning smoking… everywhere.”  

 This is largely a reflection of changing attitudes toward smoking. About 20  percent of the population nationwide (14 percent in Massachusetts) consider  themselves smokers, and growing numbers of non-smokers are concerned about the  health hazards of exposure to second-hand smoke. A 2006 Surgeon General’s report concluded that “there is no risk-free level of exposure to second-hand smoke.”  

 Getting the Go-Ahead

 Given the groundswell of opposition to smoking in most communities, Marcus  points out that it is possible to prohibit smoking throughout a condo property—even within each unit—“but it requires a change in the bylaw.” He explains that in condominium law, there is a hierarchy that must be followed  by the board of directors/trustees and by a judge if there is litigation. The  highest priority is a state’s condominium act, which is usually designed to provide some flexibility for  associations to adapt their rules to their particular situations.  

 Formation of a condominium community starts with a “declaration,” which is a document recorded among the land records in the county or city where  the property is located. That document asserts that the property is “declared” to be a condominium and spells out some basic issues, such as what constitutes  a common element vs. an individual unit.