Where There’s Smoke … There’s Fire?

Q I live above a daily cigar smoker, and particularly in the warmer months I like to leave my windows and balcony door open. I’ve complained several times to the board and management that the smoke is getting into my unit, my rug, my bed sheets, my furniture. I’m told that although smoking is banned inside the building, my neighbor is totally free to smoke in his balcony regardless of where the smoke goes. Do I have any recourse at all in this?

—Smoked Out in Salem

A “The person probably has no recourse because, undoubtedly, the property is not ‘smoke-free.’ Very few condominium projects have adopted anti-smoking regulations. Your recourse is to lobby to make the property 'smoke-free,'” says Attorney John A. Facey III, a shareholder and director of the law firm of Kenlan, Schwiebert, Facey & Goss, P.C., in Rutland, VT. “While it is unusual, it is a growing trend and there has even been legislation passed in New Jersey although I am not aware of legislation passed in any other northeastern state.

“That said, smoking could be banned everywhere on the condominium property (including in units) or just on the condominium common and limited common areas (which would include, typically, balconies and porches) or just in certain public areas such as lobbies, stairwells and hallways.

“Whether your governing document is a declaration of covenants (CC&R’S) or a declaration of condominium (Declaration), a change would require majority vote of the owners to change your governing document to ban smoking altogether or to amend an existing nuisance provision to define nuisance as including 'second hand smoke.'

“It might be easier to amend your associations existing rules and regulations to ban smoking or restrict it to within a unit because changing the rules and regulations can typically be done by board action without going to a vote of the entire ownership. A Colorado court has upheld a condominium association's right to adopt such regulations and enforce them over the objection of owners who bought their units before the adoption of the anti-smoking ordinance rule. See Christiansen, et al. vs. Hermitage Hills #1 Condominium Association 458-5750 (Colorado District Court November 7, 2006)

“If for some reason you cannot get your association or its board to vote in an acceptable smoking restriction, you might consider going to your municipality and ask its legislative body to pass an ordinance prohibiting smoking in a multi-unit housing complex.”