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Q&A: No Escape from Smoke

Q. We live in a 60-unit condominium in Massachusetts and share a common balcony with our next-door neighbors, divided by just a short railing. 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 research available on the subject today, it is clear that smoking presents a serious health concern and nuisance,” says Scott Eriksen, partner at Perkins & Anctil, PC in Westford, Massachusetts. “Secondhand tobacco smoke contains dozens of compounds which are known to be or are probable human carcinogens, and is itself classified as ‘Class A’ carcinogen by the United States Environmental Protection Agency. In light of this information, over the last two decades, there have been many changes to both public and private policies in regards to smoking. From the workplace to airports to restaurants and other gathering places, many government entities and public and private organizations have introduced a ban on smoking.  

“How to handle smoking at condominiums, particularly apartment-style or townhouse buildings, has also been a hot topic of late. Secondhand smoke can drift through common walls and ventilation systems and contaminate air in common areas and individual units.  In addition to the health issues, a number of our clients have sought to implement smoking bans to reduce the risk of accidental fires and/or to eliminate waste from improperly discarded and unsightly cigarette butts. One of our larger association clients, an apartment-style community in the Boston area, cited the cost benefits of reduced maintenance of common area air ducts and ventilation systems as a reason for imposing restrictions.  

“Based on our experience, we believe that in order to implement an effective and enforceable no smoking policy, the board (or concerned owners) should take the following steps:

“Depending on the scope of the proposed restriction, an effective smoking policy may require an amendment to the Master Deed or Declaration of Trust/Bylaws. In Massachusetts, condominium boards generally have authority to make rules regarding the use of the common elements (and thus may be able to effectively restrict or ban smoking in common areas); however, restrictions on the use of units will likely require an amendment which almost certainly will entail a vote of at least a majority or supermajority unit owners (depending on the documents). If the proposed policy is intended to ban smoking outright, the first step that the association may wish to take is a survey of the ownership to gauge the level of support for an amendment. We have found that associations who engage the ownership early in the process have a better chance of obtaining the necessary votes to pass an amendment. 

“Assuming that the survey indicates a reasonable level of support for adopting a policy, the next step is to prepare a draft amendment (or rule). The board would have to clearly define the purpose of the policy, the scope and effect of the policy, designated smoking areas (if any), as well as compliance and enforcement provisions. Communities may also want to consider incorporating a disclaimer to state that the board does not make any warranties that the premises will be free from secondhand smoke, even after the policy is implemented, and to determine whether “grandfathering” for current smokers is appropriate (or politically necessary to secure the requisite votes). We have prepared amendments that go both ways as to this issue – that is, amendments with limited grandfathering provisions and amendments without any grandfathering. The choice regarding the appropriate policy for the association is up to the community. 

“Once the policy has been formulated, the board should work with legal counsel to prepare the formal amendment or rule change to reflect the restrictions/limitations that have been chosen. Then, in the case of an amendment, the policy should be put to a vote or community approval in accordance with the terms of the governing documents.  In many cases, this may require calling a special meeting of the owners.  

“While there is no ‘one-size fits all’ solution to smoking at condominiums, there are certainly measures that motivated board members or unit owners can take to advance smoke free or restricted policies.”

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