Can an HOA restrict smoking? This condo owner was told the association doesn’t have the authority to keep owners from smoking in their units.

Q: Can a condo prohibit smoking in the building except for owners? At the time the rule was changed on the grounds that those owners cannot have the right to smoke taken away – even if the smoke disturbs neighbors who smell smoke from next door balcony.

Can an HOA Restrict Smoking?

A: We’ve answered similar questions in the past about pets, leasing restrictions and even marijuana. Condominium associations frequently try to create new rules that apply to owners (or renters) going forward and grandfather existing owners. 

Take, for example, the change in the rules that either limit or prohibit rentals in a condominium building. Some owners might have purchased the units for investment purposes or lived there as full-time residents for a while, then moved out and decided to keep the unit as an investment property.

If you change the rules, these rule changes will affect these owners immediately and they’ll likely have big financial repercussions. So, to limit the hardship on owners, the association may phase in the rule change or structure the rule change to grandfather the current owners. As the current owners sell their units, the new owners would become bound to the new rule. 

Enforcing Rules in an HOA

For some rules, the association may enforce the rules immediately. These rules tend to relate to all owners evenly and without creating any particular hardship on any type of owner. Examples might include a time of day available for moves, the reservation of elevators for a move, the fees charged to those moving in and out of the property, the manner in which deliveries to the association complex may be made and so on.

Given that about a dozen states have now legalized marijuana sales, we expect to see more associations addressing smoking (tobacco and marijuana) in condominium buildings. Given how recent legalization has occurred, it would seem to us that most homeowners did not rely on being able to smoke marijuana freely in their units when they purchased it, as at that time it was likely an illegal drug. However, we expect to see associations now ban marijuana smoking in common areas of buildings, and treat this issue similar to a change of rules that affect all homeowners evenly.

HOA Restrictions in Special Circumstances

However, when it comes to smoking cigarettes, a legal (if deadly) activity, many people may have been smoking cigarettes for decades and may have purchased the building which did not have rules against smoking. In these situations, the boards may pass rules to limit or ban cigarette smoking over time or could grandfather existing homeowners that smoke. 

Having said that, in some buildings whose construction may not be ideal for smoke, the associations may require unit owners that smoke to take action to eliminate the transmission of smoke from one unit to another. Whether associations require filtered ventilation systems or specialists that can seal cracks between units to prevent the movement of smoke from one unit to the other, the associations could pass these rules that could affect all homeowners.

While the rules could allow homeowners to smoke in their units, those same associations could pass a rule to eliminate smoking in all common areas and on all balconies. As you can see, there could be quite a variety of rules that associations could and may enact that relate to cigarette (and cigar and pipe) smoking in the condominium building. 

How the Building Itself Factors Into the HOA Rulemaking Process

Keep in mind that these rules could differ between different types of buildings, even in the same development. Highrise, lowrise and townhome developments may be built in different ways, requiring different smoke remediation solutions. Old loft type buildings may have old wooden floors that may allow smells and smoke to flow between units and newer air-tight buildings may have lesser issues when it comes to smoke. All of these construction and building type issues could (and we think, should) factor into the rulemaking process. 

Finally, if you have more questions, you might want to talk to a condominium attorney. Some attorneys will disagree with what we’ve said about having different rules that apply to different people as it would seem to create different classes of owners: legacy owners and new owners. Thanks for your question.

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