The tension between smokers and non-smokers in community associations, especially condominium and townhome communities where owners share walls, floors and ceilings, is not a new topic.  For years, associations have grappled with balancing individual rights against growing health concerns about second hand smoke.  That debate has become more complicated and prevalent in recent years with the legalization of medical marijuana in many states.  The debate will only continue as states, such as Colorado and Washington, legalize the recreational use of marijuana as well.

So, what is an association to do when faced with complaints from residents about their neighbors smoking marijuana?  What tools does or should an association have to respond to such complaints?

Be Neighborly and Reasonable

So often, when a resident has a complaint or problem with a neighbor, the first person he complains to is the association’s manager or a board member, thinking that the association is there to resolve every issue that may arise.  Sometimes, it is not the association’s place to get involved.  For example, if the behavior complained of does not constitute a violation of the governing documents, the association may have no authority to get involved at all.

Regardless, it is always advisable to suggest the aggrieved person talk to his neighbor in a calm and neighborly way, explain the problem, how it affects him, and propose a solution.  Believe it or not, problems can often get resolved if people will just talk to each other.  There have been situations where the smoker has agreed to limit the times he smokes, as well as agreeing to use air filters or smokeless ash trays to reduce the infiltration of smoke into the neighbor’s unit. If both sides can show respect and consideration for one another, it can go a long way to resolving issues.  If that is not possible, however, read on.

Such a Nuisance

Many community declarations contain language similar to the following:

No nuisance shall be permitted within the community, nor any use, activity or practice which is the source of unreasonable annoyance or embarrassment to, or which unreasonably offends or disturbs any owner or which may unreasonably interfere with the peaceful enjoyment or possession or the proper use of a unit or common element, or any portion of the community by residents.

These provisions are often difficult to enforce because the determination of what is a nuisance is often very subjective.  What may be a slight annoyance to one person may be an enormous aggravation to another.  So, while it is possible to prohibit smoking by claiming it to be a “nuisance,” in violation of association covenants or rules, this is not an approach we always recommend, for several reasons.

First, while the board’s authority to regulate activities in common areas is clear, its authority to restrict activities in individual units is both less clear and more restricted.

The second problem with using a nuisance covenant or rule to restrict smoking is the difficulty of defining precisely what a nuisance is.  Some people are more concerned about second-hand smoke than others.  Some find even a trace of smoke intolerable, while others barely notice the odor in a smoke-filled room.  Courts in some jurisdictions have found that second-hand smoke rises to the level of a nuisance or a “trespass” if it exacerbates an underlying health condition (asthma, for example) of those exposed to it.  But other courts have also noted a distinction between an annoyance and a nuisance, finding that because a neighbor is annoyed or offended by smoke is not in itself sufficient grounds for prohibiting residents from engaging in a legal activity (smoking) inside their homes.

To even get to the point of sending a violation letter, let alone pursing a nuisance enforcement lawsuit, the Board will have to determine what a “reasonable person” should have to put up with living in similar proximity to the smoker.  The Board or manager may have to visit the home of the complaining resident to experience first-hand the effect of the marijuana smoke.  This is a very subjective determination and one that is not easy to make.  More often than not, boards do not want to wind up in the middle of these disputes, responding to smoking complaints – and the litigation they may trigger – on a case by case basis.  Usually, nuisance is simply not a strong enough argument, nor a desirable one, on which to base association’s no-smoking policy.  Given that, and short of a VERY strong and obvious nuisance violation, boards that want to prohibit smoking in individual units should consider amending the association’s declaration.

Bans on Smoking

While associations most likely have the authority to adopt rules to prohibit smoking in the common areas of a community, with changing attitudes about smoking and the health effects of second hand smoke and the growing prevalence of marijuana laws, more boards of directors of associations are introducing amendments to the covenants to completely ban smoking in the community, including inside the units.

While the courts have been and remain reluctant to restrict what individuals can do within their own homes based on nuisance arguments or rules adopted by the board of directors, they are less likely to challenge a policy approved by the owners in a self-governing community, such as an amendment approved by a super-majority of the owners prohibiting smoking.  Such an amendment has been upheld by a Colorado court.  In that case (Heritage Hill Condo Owners v. Sauve), the court was influenced by evidence that the board had gone to great lengths to find other solutions, short of a ban, that would address the concerns of non-smoking neighbors.
Some communities include a ‘grandfather” provision, like the one highlighted in this example, exempting current owners from the smoking ban; others go “cold turkey,” prohibiting smoking immediately and with no exceptions, while some wind up in between, grandfathering current residents for a limited period to give them time either to adjust to the policy or move.

In drafting a no-smoking amendment, the board needs to consider whether to grandfather existing smokers or not.  While it is not a requirement to grandfather existing smokers, it may make it easier to win owner approval.  Boards of directors should get a sense of how owners feel about a ban before deciding how or if to proceed with one.  Conducting surveys and holding meetings to discuss a possible amendment can go a long way to ensuring its success or saving the association a lot of time and money if the amendment is not widely supported.

Community associations that enact smoking bans will have to consider how to enforce them.  It is advisable include a provision in the declaration amendment specifying that while the board may enforce the ban, it is not required to do so.  This language makes enforcement of the smoking ban an option, not an obligation, for the board.  However, in any instance, the Board’s decision whether to enforce or not cannot be arbitrary or capricious – the board must be fair and reasonable, reflecting efforts to act in what board members believe to be the community’s best interests, as required by the “business judgment rule.”

Within that framework, boards don’t have to respond equally to every smoking complaint.  They can and should distinguish between the complaint of a pregnant owner concerned about the health impact of second-hand smoke, and the complaint of the owner who says, “I think I smelled smoke last night and I’m pretty sure it was coming from the owner down the hall, and this has nothing to do with the fact that I’ve been fighting with this owner about just about everything for the past 10 years.”  Boards can decide to pursue some complaints while deciding that they do not have sufficient evidence or sufficient resources to pursue others.

In the end, reasonableness and common sense should control.  However, as all of us who work in this industry are well aware, striking that balance can be difficult.  Associations need to be prepared with policies and rules that are supported by the community, reflect the prevailing values of the residents, and are reasonable and able to be uniformly applied.

David A. Firmin
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