As more and more unequivocal evidence to support the negative effects of second hand smoke is published, many developers and administrators are in support of banning smoking in more and more places – including the privately owned units in HOAs.
I’ve started to notice that the issue of secondhand smoke in condominiums and townhouses developments is arising much more frequently. Secondhand smoke is pesky and can penetrate the surrounding homes through various portals including air ducts, beneath door frames, windows, etc. Many residents have been expressing concerns, but are not sure how much authority HOA’s have over the matter. As such, the question of “can HOAs regulate smoking in private apartments?” arises. There are some things to consider on this.
There are some preliminary steps that an HOA can take that may resolve the matter before it can escalate. First, neighbors are encouraged to talk it out amongst themselves directly. Should a resident have a complaint regarding the smoking habits of others, they may be able to simply talk it out and come to a compromise. Sometimes it is a simple as altering the units to seal some of the air gaps that allow the smoke to pass through into the surrounding homes. If they are unable to come to a resolution on their own, the HOA Board may step in to mediate the situation by asking the neighbor to be mindful of their smoking habits and the effects they have on the rest of the community. Most Bylaws have a CCR provision – which prohibits residents from causing nuisances’ to the rest of the community. Second hand smoke can certainly be considered a nuisance, so a complaint can be made based on that proviso and investigated. Unfortunately these tactics do not always work and further steps have to be taken.
But is it legal to ban or regulate smoking inside the units? Moreover, is it ethical? The Smoke Free Air Act that was passed in April of 2006 prohibits smoking in indoor public places but private homes are not included. So although HOAs have pretty much free range on governing common areas, there is less latitude regarding the unit interiors.
It is in fact legal to do so, when the correct steps are taken. It is first recommended to consult with the Association’s legal team and DCA. They can advise on which method of implementing such a rule would be best to suite the HOA. For example, if a smoking ban was enacted by a majority vote it would be much easier to enforce in comparison to a Board resolution. This way it is owner initiated with most of the residents in agreement, thus they will be more likely to follow the ban. Or instead of banning smoking completely, they may be able to place restrictions on where and when they can smoke . Enforcing this rule is very difficult though. There aren’t really any notable methods to police and monitor this policy, other than random checks into the units.
Other issues may arise as well. There have been cases throughout the years in which smoking residents have sued their HOA over this ban. The HOA’s usually win, but it is an added legal expense and overall hassle. Unit owners may sue each other as well if they fail to come to a resolution. How could this potentially alter the cohesiveness of the community? It is hard to say, but the majority of studies show that there has been either a positive or neutral effect on the smoke free rule.
So although this ban is legal and can be passed by taking certain steps, could it be disputed on the grounds of ethics and morals? There is a dual argument here that on one side argues homes are private sanctuaries. People typically don’t like being told what they can do in their own homes. Should they decide to sell, they would have to rehab their unit which could cost them a pretty penny. On the other hand it can be argued that it is not moral to inflict health problems and impede on the living conditions on the rest of the community? That argument usually holds firm.
Options for Condo Owners Suffering from Drifting Secondhand Smoke
June, 2009 http://www.smokefreehousingny.org/
Is It Time To Prohibit Smoking?
September, 2012 https://njcooperator.com/
Handling Conflict Between Neighbors
April, 2017 https://njcooperator.com/
A Burning Issue
June, 2010 https://njcooperator.com/