Q. I live in a condo and my downstairs neighbor is constantly smoking, which bothers me greatly. I brought it to the attention of management, but nothing has been done. What are my options as an owner? Do I bring legal action against the management or do I take legal action against the neighbor where the cigarette smoke is coming from?

                                               —Sick of Smoke

A. “Determining a proper course of action related to your neighbor’s smoking and your options as a unit owner requires a review of the circumstances and your condominium’s governing documents. Important questions to answer are: (1) Where is your neighbor smoking, in their unit or in common area space(s)?; (2) Is there a prohibition on smoking in units?; (3) Is there a prohibition on smoking in common areas?; (4) If a prohibition exists, who has the right to enforce those provisions?; and (5) Is your neighbor the owner of the unit?,” say  Ryan R. Severance, associate at Moriarty Bielan & Malloy, LLC in Boston.

“While many newer condominium governing documents prohibit smoking in units and the common areas, many older documents do not prohibit smoking in units, though non-smoking amendments to older documents are becoming more common as residents have become concerned about second-hand smoke. In Massachusetts, smoking restrictions in units will usually appear in a condominium’s master deed, while restrictions on smoking in common areas will usually appear in the condominium’s rules and regulations, which may be attached to the declaration of trust or by-laws or recorded separately. You will need to review to confirm.

“If prohibitions exist in your governing documents, and your neighbor continues to smoke in a prohibited area, you can address the smoking prohibition with your neighbor directly. Assuming you have already addressed the instances of smoking with the board of trustees of your condominium and management in detail, you will need to evaluate whether you, as a unit owner, have any authority to enforce the relevant provisions of the condominium’s governing documents against the owner of the downstairs unit where the resident is smoking. As smoking is a sensitive issue that can be difficult to resolve, many condominium governing documents will provide unit owners with the legal authority to enforce in-unit smoking prohibitions against other unit owners.

“If this is the case in your condominium, you may proceed with legal action directly against the owner of the downstairs unit on your own. Even if there is no right for a unit owner to enforce the provisions contained in your condominium’s governing documents, you may still have individual claims against the neighboring unit owner, such as for nuisance, so consultation with counsel is recommended.

“If the condominium’s governing documents do not provide for unit owner enforcement, or if the neighbor is smoking in the common areas, you may need to again request that the board enforce the provisions in the governing documents. 

“If you live in a condominium with no prohibition against smoking, then it may be difficult to pursue an action, except for asserting common law claims, such as nuisance. It may also make sense to consider whether remediation measures are possible in your own unit. Remediation measures may include air purifiers, fans, and changes to heating and cooling duct locations.

“If you continue to deal with this issue, there are other measures that may be pursued, which will vary dependent on the factual circumstances. For example, you can try to gain support to effect a non-smoking amendment to the condominium’s governing documents in the event there is no prohibition against smoking at present. If the board continues to fail to enforce the provisions of the condominium’s governing documents, you may vote in new board members who will make it a priority to do so.

“Regarding the specific question as to whether to file a legal action against management, it is important to note that your condominium’s property manager or management company works at the direction of the condominium’s board. “Therefore, it is usually not appropriate or worthwhile to take legal action against management and, in most circumstances, there are efforts that can be undertaken that can effect change in a manner that is more cost-effective and less adversarial.”