The Declaration (noted as Master Deed) can be amended by an affirmative vote of at least 2/3 of all Units entitled to vote (or a higher percentage if the Declaration so provides).
Once amended, the question would indeed be how to enforce that ban. There would probably need to be a Rule/Regulation as to the process that would be followed if an owner is suspected of smoking in the Unit.
Since both amending the Declaration and enacting a Rule/Regulation concern legal documents and have legal ramifications, I suggest you (the Board) work with a knowledgeable community association lawyer.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Assuming the governing documents currently lack a prohibition against smoking inside units, the only way to prohibit such conduct would be to amend the declaration to add such a restriction. If not enough votes are cast in favor of such an amendment, another approach the Board could consider would be to adopt rules and regulations to mitigate smoke transmission between units. Such rules could include a requirement that any owner who wishes to smoke inside a unit must fully seal his unit and/or install a medical-grade air purification system at the unit owner’s expense. If the owner refuses to comply with such rules, the board could impose a fine or seek a declaratory judgment to force the owner to comply.
In regard to the problem the questioner mentioned regarding evidence and proof, the amendment or the rule/regulation could include an provision authorizing the Association or its agent to enter into units upon receiving a complaint for the purpose of enforcement-related investigation of possible smoking. The questioner is correct to point out that finding conclusive evidence could prove difficult. Even if someone has been smoking and an inspector comes knocking on their door, they could conceivably hide or dispose of the evidence quickly before opening the door. That said, it is not easy to immediately and completely rid a condo of the odor of cigarette smoke if someone has been smoking just moments before. So the inspector would simply need to use common sense. If the inspector walks in and can smell that someone has been smoking, then he or she would simply need to document that, and that would be sufficient to proceed with the fine or other enforcement procedure.
Sean A. O’Connor
Finkel Law Firm LLC
4000 Faber Place Drive, Suite 450
North Charleston, South Carolina 29405
Direct Dial 843.576.6304
I have always been of the opinion that while you can regulate smoking in the Common Areas, you cannot prohibit current owners from smoking inside their personally owned homes, when no such prohibition existed at the time they purchased that Unit. If you can gather the votes, you could amend the covenants providing that the development is smoke free on a prospective basis and all future purchasers must agree not to smoke anywhere on the premises.
It would be a difficult covenant to enforce, as you cannot break down a front door to catch an owner smoking. You might be able to enforce the restriction if cigarette smoke enters a neighboring unit and they can prove it is (1) cigarette smoke and (2) the location from which it is emanating. The burden of proving a violation always rests with the person asserting the violation.
Stephen R. Buschmann
Thrasher Buschmann & Voelkel
Market Square Center
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
We have assisted other Association with providing for a smoke free building. We recommend that the Declaration be amended, which typically requires approval by a percentage of owners.
Obviously, the question of evidence/proof of a violation would involve the facts of each circumstance. It is difficult to fully mask the smell of cigarette smoke. The complaining owner should have evidence of a violation.
David G. Hellmuth
Hellmuth & Johnson
8050 West 78th Street, Minneapolis, MN 55439
Associations generally have the ability to protect the health, safety and welfare of the Unit Owners, so if there is a Master Deed amendment prohibiting smoking in the Units and common areas, it has a chance of being deemed valid.
If there is to be a challenge, it would be on the basis of the case law which holds that all actions of a community association, with respect to its owners, must be “reasonable”. The Unit Owner would likely insist that the Board’s action is not reasonable – that there are much less Draconian ways to go about making sure that other Unit Owners are not disturbed by the smoke.
To forestall this defense, I would suggest that before making an Amendment, trying some of these methods, such as sealing around pipes, vents, sliding glass doors and the like, and checking the air conditioning/heating system to make sure that smoke is not able to get into the hallway when smoking occurs inside a Unit. The Unit Owner might assist by getting an air filter.
You are correct that without evidence of smoking, the Association’s enforcement ability is substantially compromised. You might examine the likelihood of successful enforcement before expending the quantity of energy required to achieve either a relatively smoke-free environment or an amendment.
Robert C. Griffin
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100