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Do you really want to become a no-smoking property?
by: Rob Samouce
The question often arises as to whether a condominium association could ban smoking on the entire condominium premises.

There have been some news articles about some new, no-smoking condo or cooperative buildings in other cities and states such as New York or Boston, but we haven’t really seen such a trend in Florida yet. The main reason probably has to do with associations not wanting to hinder sales or leases during the economic downturn in real estate as of late.

If you become a no-smoking building, you will immediately decrease the number of prospective purchasers and tenants. Even those buildings, with a vast majority of owners who do not smoke, haven’t wanted to go to such an extreme of becoming a no-smoking property because of the effects it may have on potential purchases and leases.

A board of directors cannot just pass a house rule to go to no-smoking property because house rules must be considered reasonable under the law.

Many smokers will argue that prohibiting smoking anywhere on the condominium property is unreasonable and so could a particular judge or jury if litigation arose concerning such a rule.

A board could pass a house rule that would provide a certain smoking area near the pool or outside the clubhouse so that people won’t smoke right next to others at the pool or in the clubhouse.

However, if an association is contemplating a regulation making the entire property a no-smoking property, it will have to amend the Declaration of Condominium with the requisite membership approval vote for such an amendment.

Putting such a vote to the membership will most likely cause a lot of ill-will between smokers and nonsmokers and the conversation may get quite contentious. In addition, there would be a good chance that any current smokers would be grandfathered under the laws and could therefore still smoke until they sold their unit.

What about an amendment with a membership vote stating that no one could smoke on their lanai?

Lanais are usually either a limited common element, for which an owner has the exclusive right to, or are part of the unit.

If such an amendment passed, the smokers may just go light up inside their unit, which usually causes more of a problem to non-smoking neighbors than if they were smoking on the lanai, where a breeze was carrying the smoke away. When someone smokes inside the unit, smoke can permeate the walls and can migrate to the inside of surrounding units.

Usually for balcony smoking issues, common courtesy is the best rule to follow by owners in the building. An owner, wishing to smoke on their lanai, should check first to see if anyone is out on their lanai before lighting up their cigar or cigarette. And then, either wait to light up or ask anyone else outside at the time if they mind if they lit up.

Another option is for the smoker to utilize electronic cigarettes, which do not produce any second-hand smoke but rather just water vapor. If smokers in a particular building are courteous in this manner, there usually is not a smoking on the lanai problem in such a building.

If you have a smoker who will not use common courtesy and smokes excessively bothering the neighbors, then the surrounding owner or owners may be able to get legal relief if such smoking rises to the level of a legal nuisance.

Usually in order for such smoking to rise to such an actionable nuisance level, the smoking has to be more than normal smoking other owners may exhibit on their exclusive use areas and usually the complainant cannot be a super sensitive person. In other words, would a normal person believe the smoke to be excessive to the point of being a nuisance to a normal person?

So, if your building is almost entirely full of nonsmokers and you don’t mind possible hits on resales, you might want to try to get a membership vote to amend your documents to make your building become a no smoking property one day. However, you will most likely still have to grandfather current owners. Therefore, it could be many years before you realize being a nonsmoking building.

To make smoking a non-issue, maybe the first best bet is to send out a memo and ask your smokers to be courteous when smoking outside their units to ensure that their smoke does not bother others and consider smoking electronic cigarettes when others are around.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.