Where There’s Smoke, There’s … Smoking

Are Condominium Smoking Restrictions Legal?

Tennesseans and most Americans have long lived by the old sayings “a man’s home is his castle” and “I can do whatever I want in my home.” Unfortunately, there’s the way it ought to be, and there’s the way that it is. Whether you live in a single-family home, townhome, condominium or apartment, numerous activities are no longer permitted at home. You cannot house multiple families in one home because of single-family occupancy restrictions. You cannot make exterior architectural improvements or changes without prior written approval. You cannot run a business out of your home because of residential-only use restrictions. You may not even be able to rent your property. These and many other activities are prohibited by law, local ordinance, association covenants and by-laws, or rules and regulations.

According to a report conducted by the United States Surgeon General titled “Health Consequences of Involuntary Smoking,”[1] it was reported that secondhand smoke causes lung cancer in people who have not previously smoked and increases the risk of heart disease, stroke and chronic lung problems. The report went on to conclude that children exposed to secondhand smoke are at risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems and more severe asthma.

In response to the findings by the United States Surgeon General and numerous similar reports on the impacts of secondhand smoke, Tennessee enacted the Non-Smoker Protection Act (the NSPA).[2] The NSPA prohibits smoking at enclosed public places, aquariums, libraries, museums, hotels, elevators, restaurants, restrooms, shopping malls, theaters and other areas available to and customarily used by the general public.

Although the NSPA prohibits smoking in most “public” areas, it expressly excludes “private homes” and “private residences.”

Is Smoking a Nuisance?

In December 1992, the Environmental Protection Agency (EPA) released a report titled “Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders.”[3] The report classified second-hand smoke as a Group A carcinogen which is a known cause of cancer in humans. According to the United States Department of Health and Human Services, Centers for Disease Control, an estimated 41,000 nonsmokers die each year from exposure to second-hand smoke.[4] Passive smoke has been conclusively linked to respiratory problems in infants and children. These and other health-related concerns raise a legitimate legal issue: does second-hand smoke constitute a nuisance? Is it an unreasonable or unwarranted activity that creates an interference with another person’s use of his property? The answer often times is yes.

Associations have used nuisance provisions to stop residents from a variety of activities, such as hosting loud parties; prohibiting certain types of short-term, vacation-type rentals; and operating a vehicle repair business. Although Tennessee has a common law cause of action for nuisance, by acceptance of a deed for one’s property (whether or not it shall be expressly stated in such deed), unit owners are contractually bound by the covenants, conditions and restrictions within the association governing documents not to engage in activities which create a nuisance. Neighbors need only show that the activity they complain about is substantial, that it unreasonably interferes with the use and enjoyment of their property, and that it would be offensive to a reasonable person.

Most association governing documents allow an aggrieved unit owner to take legal action against the association, another owner, a tenant or occupant to enforce a Declaration, Master Deed or Bylaw provision prohibiting nuisances. It is more likely, however, that the unit owner will complain to the association and suggest that the board enforce the Declaration, Master Deed or Bylaw provision. Association board members have a duty[5] to enforce all lawful provisions of the association governing documents. To fulfill this duty the board, often with the assistance of it attorney, must evaluate the complaint and determine whether, in its judgment, the activity actually creates a nuisance and violates the association governing documents.

Are Smokers a Protected Class?

As the law currently stands, a person who is addicted to nicotine is not considered to be disabled under state or federal fair housing laws.

A condominium association cannot prevent people from smoking … or can it?
Most people assume that when they buy a home, they will be the ones making the decisions about their property. If you live in a condo, however, much of the decision-making power lies with the homeowner’s association (HOA). Contrary to what many people may believe, smokers are not considered to be a protected class. Nonsmoking communities are legal and associations may adopt governing documents and amend their existing governing documents to limit or completely prohibit smoking in common areas and even within individual units under some circumstances. This is particularly important for condominium projects that have multiple units that share a common hallway for access.

Governing Documents
Condo HOAs can incorporate their own smoking restrictions by amending their existing governing documents or by creating new ones. The association Master Deed or Declaration normally include a mechanism for amending the document. The association’s bylaws normally contain all of the requirements necessary for providing notice of annual and special meetings to the association members, the number of association members who must be present in person or by proxy to conduct business at the meeting (aka the quorum), and the number of members required to vote upon amendments.

Are condominium smoking restrictions a good idea?
Some owners are hesitant to restrict smoking in their building in the belief that this will limit the pool of buyers for their condos. But most realtors say that more buyers are looking for non-smoking buildings than buildings that permit smoking and, as the dangers of second-hand smoke become more widely known and understood, this trend will continue. Other owners worry that smoking bans will interfere with their ability to host guests or family members who smoke. Although this is a legitimate concern, it needs to be weighed against the risks associated with exposure to second-hand smoke. In most cases, visits by smokers are relatively infrequent, while the exposure of non-smoking residents to the second-hand smoke of smoking residents is constant.

What kind of smoking prohibition should a condominium homeowners association adopt?
Some HOAs ban smoking in interior common areas such as lobbies, common hallways and garages, but permit smoking in the units and in exterior areas. Some HOAs ban smoking in all interior and exterior common areas, in which case smoking would only be permitted in a unit. Still another approach is to allow smoking outdoors but not indoors, or to allow outdoor smoking only if it is not close to a building.

With any of these approaches, non-smokers will be exposed to second-hand smoke. When smoking is permitted in the units and/or interior common areas, smoke can travel through the ventilation system or hallways and enter non-smokers’ units. There is no known method of preventing this exposure. The U.S. Surgeon General Report states: “Eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings does not eliminate secondhand smoke exposure.”

If smoking is permitted only outside, nonsmokers will be exposed to second-hand smoke when they pass through or near the areas where smoking is allowed. In addition, depending on the patterns of wind and building ventilation, the amount of second-hand smoke that reaches the unit interiors of non-smokers can be surprisingly high. These problems can be minimized by restricting smoking to a specific area that is relatively far from the building, but the resulting rule is generally no more burdensome on smokers than forcing them to leave the property to smoke. Moreover, when smoking is permitted only in a specific outdoor area, owners often find that the smoking area turns into a significant eyesore or maintenance burden.

For these reasons, HOAs are increasingly choosing to make the entire property smoke-free. This means that no one can smoke in a unit, on a deck or patio, in the garden, on the roof, on the front steps or anywhere else. This ensures that nonsmoking residents and their guests are not exposed to second-hand smoke while on the property. This policy can also generate a discount on insurance premiums.

Once an amendment is adopted how does the HOA enforce violations of the new smoking restrictions?
Once the amendment is signed and recorded at the Register of Deeds (which is commonly required by the existing Declaration), the existing enforcement provisions recited within the Declaration will now be available for the enforcement of the newly adopted smoking restrictions.

If the existing Declaration does not provide enforcement provisions, if the existing enforcement provisions are ambiguous or weak, or if the existing enforcement provisions do not hold tenants and occupants (as well as unit owners) liable for compliance with the association governing documents, the amendment should include a specific enforcement section to include written notices to unit owners, tenants and occupants; fines (which must be reasonable in dollar amount and should only be assessed for up to four to five months before being turned over to the association’s attorney); and remedies at law and in equity for the enforcement of the new smoking restrictions and all existing covenants, conditions and restrictions recited within the existing Declaration. It is also advisable to include within the enforcement section, language that makes violations committed within three to six months of a previous violation, a continuation of the previous violation rather than a new violation.

Case Law

Case #1
Plaintiff made numerous complaints about incessant smoking by tenants of an adjacent unit, that the smoke was aggravating their young son’s asthma. Complaints were made to the association management company, the unit owner and tenants of the unit, none of which were addressed. The smoke aggravated their son’s asthma to such an extent that Plaintiffs were forced to move. Plaintiff filed suit against the association. After a five-week trial, a California jury awarded the Plaintiff $15,000, saying that the association’s failure to resolve the complaints about second-hand smoke was a breach of the “quiet enjoyment” and “nuisance” provisions within the association’s governing documents.[6]

Case #2
Plaintiffs sued Defendant, condo association, alleging that an amendment to the association governing documents that prohibits smoking, was unlawful, arbitrary and capricious. The trial court recognized, properly, that “anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power [to amend its documents], accepts the risk that such discretionary power may be used in a way that benefits the commonality, but harms the individual.” Thus, the amendment to the association governing documents which prohibited smoking was upheld by the court.

Finally, the court considered whether the smoking ban violated any public policy or fundamental rights of any of the owners. The court gave this argument short shrift, stating that courts have not specifically extended the protections of the Fourteenth Amendment to a fundamental right to smoke, especially when the Suaves’ private activities are negatively impacting the others in the community they chose to join. Because the amendment was proper, reasonable, made in good faith, and not arbitrary or capricious and because the amendment did not violate public policy or otherwise abrogate a constitutional right, the court ruled in favor of the association and denied the Suaves’ requested injunctive and declaratory relief.[7]

Purchasers of condominiums take title to their units subject to the Declaration, Master Deed and Bylaws which are of record prior to the date of their deed. All condominium association governing documents include procedures which may be taken by association members to amend their governing documents. So long as these amendment procedures are strictly complied with, unit owners can have no expectation that the governing documents shall remain unchanged and thus, have no vested right in the status quo as it existed when they purchased their units. Amendments to condominium association governing documents that limit or completely prohibit smoking, whether in association common areas or inside individual units, are lawful and necessary to protect the health and welfare of the association as a whole.

Notes

  1. U.S. Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General, Atlanta, Ga., U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006.
  2. Tenn. Code Ann. § 39-17-1801. Non-Smoker Protection Act.
  3. “Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders,” EPA 600/6/90/006F (December 1992).
  4. U.S. Department of Health and Human Services, The Health Consequences of Smoking — 50 Years of Progress. A Report of the Surgeon General, Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014.
  5. Tenn. Code Ann. § 48-58-301. General Standards for Directors.
  6. Community Associations Institute.
  7. Suave v. Heritage Hills 1 Condominium Owners Association, No. 06CV1256, Colo. Dist. Court, Nov. 7, 2006.

Scott D. Weiss SCOTT D. WEISS is an attorney at Weiss & Weiss, Attorneys at Law. His practice is dedicated primarily to the representation of community associations throughout Tennessee. He is a Tennessee Bar Association CLE faculty member; he is a member of the TBA Homeowners Association Act Drafting Committee and co-author of the Tennessee Homeowners Association Act; he is the president-elect for the Tennessee Chapter of Community Associations Institute (CAI) and serves as a member of CAI’s board of directors and Legislative Action Committee. Weiss lectures regularly on issues of importance to community associations in Tennessee and has served as an advisor to the Tennessee Attorney General’s Office and members of Tennessee’s General Assembly as an expert in community association law.

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