By Molly Foley-Healy, Esq., Winzenburg, Leff, Purvis & Payne
Whether you are a homeowner, serve on the board of directors of your community association, manage, or are an attorney specializing in community association law, it’s probably a safe bet that you either have experienced smoke migrating in your community or are dealing with complaints about it. While years ago tobacco was the primary type of smoke which migrated between units or onto the common elements, today we can add marijuana smoke and the vapors which are exhaled by folks who are smoking e-cigarettes or using other vaping devices to the list.
Years ago, when I first started receiving requests from clients for guidance on how to address issues relating to smoke migration, I mistakenly assumed that this was a problem that could only be experienced in older or poorly built condominiums. While it’s true that smoke migration is largely an issue experienced in stacked condominiums or homes attached by party walls of any age or quality of construction, I have also found that smoke migration onto the common elements can also be an issue in single family home communities where the homes are built very closely together.
Adopting Rules Regulating Smoking on the Common Elements
While smoke migration is largely an issue in condominiums and communities with attached homes, it’s important to understand that boards in any type of common interest community in Colorado have the legal authority to adopt rules regulating smoking and vaping on the common elements, which includes the limited common elements.
In deciding whether to adopt rules regulating smoking on the common elements in your community, here are some questions each board of directors should consider:
1. Is smoking on the general common elements a problem in our community? Are smokers properly disposing of cigarette butts? Should the association provide receptacles on the general common elements for disposing of cigarette butts? Is smoking on the general common elements making it difficult or impossible for non-smoking residents in our community to also use and enjoy the general common elements? If there are issues with smoking on the general common elements, what are the least restrictive rules we could adopt to reasonably address these issues?
2. Is smoking on the limited common element decks or patios causing problems in our community? Is smoking on decks or patios causing smoke to migrate onto other decks, patios, or into the windows of neighboring units? Is smoking on decks or patios migrating to such an extent that it is making it difficult or impossible for others to use and enjoy their patios, decks or even their unit? If there are issues relating to smoking migrating from patios and decks, what is the least restrictive rule we could adopt to address these issues?
3. Whenever the board is considering adopting a rule, remember that you must be willing to enforce the rule, it must be reasonable, and it cannot trump a provision of your association’s declaration.
Treating Smoke Migration as a Nuisance
In addition to adopting rules to regulate smoking on the common elements, most declarations of common interest communities have a provision which regulates or prohibits nuisances in the community. Depending upon the particular facts of a smoke migration complaint from a resident, the overwhelming and offensive smell of the migrating smoke, and the negative health effects of the smoke can adversely impact the use and enjoyment of their unit and the common elements.
If there is sufficient information in the complaint to establish that there may be a smoke migration nuisance, the board of directors and management should follow their enforcement policy to give notice of the alleged violation and consider the option of levying fines for this offense. However, associations are not permitted under Colorado law to levy fines unless they have an enforcement policy in place which provides notice and an opportunity for a hearing prior to levying the fine and the fine schedule is included in the enforcement policy.
In extreme cases, where a resident is so addicted to smoking that they just pay the fines and continue to create the smoke-related nuisance, the levying of fines will not fix the problem. In such cases, associations should consult with their legal counsel to determine whether it makes sense to file a lawsuit against the violating resident to compel their compliance with the nuisance provision of the declaration. Your legal counsel will be able to advise you on the strength of the association’s case, what steps the association should take to build the case, the costs of pursuing legal action, and the likelihood of success.
Under Colorado law, owners also have the authority to enforce the nuisance provision of the declaration against the violating resident. However, before passing off the enforcement obligation to the resident who is being adversely impacted by the smoke, the board of directors should consult with legal counsel about their obligation to enforce the nuisance provisions of the declaration on behalf of the resident being affected by the migrating smoke.
Amending the Declaration to Create a Smoke-Free Community
In some condominium communities, the construction of the condominiums may make it nearly impossible to stop smoke from migrating between the units or onto the common elements. In these cases, boards of directors can consider creating a smoke-free community by prohibiting smoking in the units and on the common elements. As discussed above, through the adoption of a rule, boards have the authority to regulate smoking on the common elements – which can include prohibiting smoking on the common elements. However, this rulemaking authority does not extend to prohibiting smoking in the units which would have to be accomplished through an amendment to the declaration of your community.
When contemplating whether to propose an amendment to the declaration creating a smoke-free community, boards of directors should consider the following:
1. Should owners and residents of condominium units at the time the amendment becomes effective be grandfathered in? In other words, should these folks be permitted to continue to smoke in their units as long as no smoke migration complaints are submitted to the association?
2. Even though smoking on the common elements can be regulated through rulemaking, is there any need to prohibit smoking on the general common elements or limited common elements and should this be included in the amendment to the declaration?
3. Should a location be designated on the common elements where folks are permitted to smoke?
While on its face creating a smoke-free community may sound like a great solution, amending the declaration may not be so easy. From a purely political perspective, owners may feel that amending the declaration to prohibit smoking in the community is too extreme to approve. Assuming you can get over this political hurdle, you may run into issues with determining what the consent requirement is to approve such an amendment and whether you are able to obtain the required consents.
Since amending the declaration to create a smoke-free community would be classified as amending an existing use restriction or creating a new one, the requirements to amend the declaration of your community can become complicated. Amendment requirements for use restrictions can be based upon when the declaration for your community was originally recorded. As a result of this complexity, it is essential to consult with your legal counsel to determine the amendment requirements for your community, to discuss the scope of the amendment, and to have your counsel draft the amendment and documents to utilize for the approval process.
If the board of directors for your community decides to propose an amendment to the declaration creating a smoke-free community and it is approved, remember that the current board and all future boards will be required to enforce the requirements in the amendment creating the smoke-free community. Individuals purchasing a unit in these communities will be relying upon the fact that the community has been designated as smoke-free. A refusal by directors to enforce these requirements could result in a lawsuit against the board and individual directors for breach of fiduciary duty. As a result, proposing an amendment to the declaration to create a smoke-free community should not be taken lightly.
Stopping the migration of smoke in community associations is no easy task. However, the tools outlined in this article will give boards and management a good starting point in considering how to best tackle this issue in your communities. Just remember that as long as they are effective, utilizing the least restrictive and most easily enforceable means to stop the migration of smoke will be your best bet.
Molly Foley-Healy is an attorney specializing in community association law, is a Fellow of the College of Community Association Lawyers and practices with the law firm of Winzenburg, Leff, Purvis & Payne.