Category Archives: Smoking

There is No “Right to Smoke” at the Condo!

H.S. from Washington state writes:

Dear Mister Condo,

We have an owner who is objecting to his neighbor below, who smokes while sitting on her back deck. She even has a fan going outside to blow smoke away, so it does not go upstairs. We have rules saying no smoking within 25 feet of bldgs. But smoking is allowed on back decks. We only added in rules years back about 25 feet so not to put out cigarettes on flooring or drop onto walkways so not to burn coating. The property manager and president now want to have a lawyer draw up an amendment to prohibit smoking outside because of one owner whining. I feel they are taking away someone’s rights. I do not care for the smoke either, but I also hate having to close my windows when neighbors light up barbecues. That is more annoying to me, and lasts longer. I said maybe we should ban barbecues. I was only making a point about taking others rights away with barbecues. I believe we will have 4 against out of 7 on the board for having an amendment, but I will be gone this next meeting, so who knows? What is your feeling? It just seems like more, silly liberal “must not offend, take away rights, nonsense.

Mister Condo replies:

H.S., I can understand both sides of this issue quite well and while I agree with you that “less rules” is a simpler solution, nuisance-free living is a staple of most condo governing documents and the issue of smoke and foul odors needs to be taken quite seriously be condo association Boards unless they would prefer to defend their lack of action against such complaints in court by unit owners who wish to exercise their rights. Speaking of which, you use the word “rights” to describe smoking. There is no such right. Smoking is not constitutionally protected so no one has a “right” to smoke anywhere on association property. They also don’t have a “right” to barbecue and you have a right to claim the odor is a nuisance to you. The real question here is how far are the unit owners willing to go to protect their right to nuisance-free living. Non-smokers have the upper hand here although, their initial action is to ask the Board to restrict the activity. If the Board refuses, their only option is a lawsuit. If they are serious enough about protecting their own rights, they may just sue the association and they will likely prevail based on the current legal climate. You can search for local court records to see how the battle is going. My guess is you will see unit owners prevail against allowing smoking. Also, many state public health agencies are also encouraging smoking bans in all high-density housing (HDH) areas, of which your condo is likely one. With both condo governing documents and state agency policy on their side, non-smokers will likely prevail, in my opinion. Good luck!

Condo Renter Smoking Out Other Unit Owners

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B.D. from outside of Connecticut writes:

Dear Mister Condo,

We are a small association, 4 units. Our current bylaws do not prohibit smoking on our common property–deck, parking areas, etc. One of the owners has rented his unit to a smoker, and did not put a no smoking clause in the lease. If our board now votes 3-1 to add a “no smoking on the common property” clause to our bylaws, will the owner be forced to have the renter comply with this?

Mister Condo replies:

B.D., unless you have state or local laws to the contrary, it is very likely that the renter will have to comply with the “no smoking” rule of the association. If the renter does not follow these rules, the unit owner (not the renter) is the one who gets fined for the rule violation. This may create tension between the renter, the unit owner, and the association, but that is truly not the concern of the Board. Smoking is generally considered “nuisance” in condominiums and can be prohibited by the association. Even if the current landlord did not ban smoking in the rental agreement, the agreement likely obligates the renter to follow the rules of the association. This is just one more rule to be followed. All the best!

Smoked Out by Renting Condo Neighbors

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J.M. from New Haven County writes:

Dear Mister Condo,

We have a rule at our condo that states “no noxious or offensive activity shall be carried on in any unit or in the common areas; nor shall anything be done willfully or negligently which may be or become an annoyance or nuisance to the other unit owners or occupants. No unit owner or occupant shall do or permit anything by such persons that will interfere with the rights, comforts or convenience of other unit owners or occupants.” The tenants in the unit next to mine are chain smokers. We asked the management company to start the process to call the owner of the other unit to a hearing but she said that she checked with the lawyer and he doesn’t think the board can do anything about smoke so she advised the board to wait until she asked him a second time. She is stalling and the board follows everything she says to do. How do you force a board and management co. to follow their own rules of enforcement? We just don’t want their smoke in our unit, we don’t care if they smoke outside. If a rule is enforced the board can fine the owner $25 a day but of the 5 board members, one board member is a relative of that unit’s owner and 2 smoke. We are stuck because the infraction rules state that the board has the right to fine not that it’s mandatory. Just today after a month we got the management company to send out a letter requesting a hearing but some of the board members don’t want to enforce this. We have to wait two months because they meet every other month. At that point they can vote to wait or do nothing again. Any ideas?

Mister Condo replies:

J.M., smoking at condominiums is a hot button issue for many associations. Some have gone as far to ban smoking completely, including common areas and unit interiors. However, it does take Board action to implement such measures and it would appear that you do not have Board members that are going to agree with your position and are likely to obstruct any corrective actions you seek to have them apply. Unless you can get these Board members to take action, you will very likely have to bring suit against the Board for not enforcing the rules on nuisance. This is not simple or inexpensive and you will likely have to hire an attorney to help you draft the lawsuit. However, this will keep the conversation going and bring the issue to a close. If you prevail, you will get your smoke-free environment to which, in my opinion, you are entitled. If you do not prevail, you may need to look at other ways opf protecting yourself, up to and including selling your condo to live someplace else.

I strongly urge you to review the State of Connecticut document entitled “Smoke Free Housing for Condominium Owners and Homeowner Associations at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714. It details what steps need to be taken to eliminate smoking, which is NOT a right, in your association. Of course, I wish you clean air and the best of luck.

Smoking Neighbor Ruining Condo Living Experience

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K.G. from Litchfield County writes:

Dear Mister Condo,

We live in a beautiful three-unit condo and have one of the neighbors from you know where! They smoke outside their unit and it fills our porch and waifs into our open windows. We have had guests ask, “Where is that smoke coming from?” while sitting on our living room sofa visiting. There is nothing in the By-Laws regarding smoking but there is the “Annoyance and Nuisance” section in the governing document. We have mentioned this to the owner and his response was, “There is no way you smell my smoke!”. We have called him and asked him to consider smoking from his other door. They now have a perpetual visiting guest who chain-smokes night and day! Our By-Laws state that we need to write a letter to the Executive Board. This man is the president, the third unit owner does not want to “rile” this man or his equally rude grown daughter for fear of repercussions. What course of action can be taken within the law? Isn’t there a law in Connecticut regarding everyone’s right to “Fresh and Pure air”? Thank you for your comments. We are at wits end.

Mister Condo replies:

K.G., you took the civil approach and were rewarded with nothing but grief from the offender. You tried the next logical choice of writing to the Board to enforce the Annoyance and Nuisance provisions of your by-laws and were told they would not do so. Next up, you sue! I am not an attorney so please consider my advice as friendly and not legal. You will most certainly want to hire an attorney to protect your rights in this situation and to make sure that you and your association follow the proper steps for ending this nuisance.

The President of the Board is not immune from following the rules of the association when it comes to nuisance. Your argument will be that smoking in the common grounds created a nuisance condition and you demand that the rules of the association be enforced. I am not aware of any state law on “fresh and pure air” but the Department of Public Housing has an excellent resource for you at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714. If you follow the steps outlined there, you may be able to have smoking stopped completely both inside and outside of the units in your association. Good luck!

Condo Living With Marijuana Smoking Neighbors

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D.B. from Massachusetts writes:

Dear Mister Condo,

Greetings from western Massachusetts!

We are a self managed Property with over 300 Units, with approximately 10 Units per Building. Our Rules & Regulations prohibit smoking in any interior Common Area (hallways, Laundry Rooms, Clubhouse, etc.) We are not a completely smoke-free property. Lately a couple has been complaining about the smell of marijuana smoke that they detect at certain hours of the night. They claim this smoke has infiltrated their Unit and has caused adverse health effects.  Maintenance sealed their Unit door, and around holes for the Common Area heating.

The Property Manager sent out a memo stating that while Management made no judgments about the use of marijuana for either medicinal or recreational use, the smell WAS offensive to some residents, and they were asked that they stop. This was followed up by a phone call to many of the residents in that Building. Two of these admitted to smoking pot, one said he would stop smoking indoors, the other swears he does NOT smoke indoors. The weekend passed and yet again, the original complainant went back to Management stating that they continued to smell marijuana. They seem sure that they know who the offender is, however there really is no proof WHO is smoking pot.

What else can management realistically do to resolve this issue? Thank you in advance for your friendly advice.

Mister Condo replies:

D.B., secondhand smoke of any sort is a common complaint among residents of any high density housing complex. Shared hallways, HVAC systems that allow for seepage of odors and just plain proximity to the smell drives many owners to consider lawsuits and more to seek relief. Most condominium associations cite nuisance clauses in their documents to thwart the activity. But, as you have seen firsthand, that doesn’t always work.

I am not an attorney but I seriously suggest you consider speaking with your association’s counsel about taking proactive measures to ban smoking altogether within your association. I say this for two reasons. You have already tried the nice way to put an end to this problem. The results would indicate that wasn’t enough. The affected unit owners are going to continue to seek relief (wouldn’t you?) and are very likely to speak to their own attorney who will likely file a suit against the association for not doing enough to curb the problem and protect the rights of the nonsmokers. Changing your association from smoking to non-smoking is no easy task. It requires an amendment to the Master Deed and, depending on your bylaws, a 2/3rds or more vote in favor of the ban by the unit owners. The ban may very well not pass but the act of trying to get it to pass may be enough to help the association defend itself in a lawsuit.

In a perfect world, smokers and nonsmokers would coexist with each getting the fresh air or smoke that they desired. In such close quarters smells and noises from your neighbors are just a part of day to day living. A smoking ban is very likely the only real solution to this problem and, depending on the make-up of the community, may not be possible to pass. It is possible that we will see local, state, or even federal law on this issue at some point but until then it is up to the individual community association to do its best to protect the rights of all unit owners. Good luck!

Second Hand Smoke Ruining Condo Life

E.G. from Litchfield County writes:

Dear Mister Condo,

Second hand smoke is coming into our unit from our neighbors unit since they moved in over a year ago. I have personally told them it was coming into our unit and asked them to please smoke outside. This made the chain smoking of multiple chain smokers worse! My son and I presented our case to the board and in front of the board my neighbor challenged the board, stating “how do they know it’s from his unit?” then, later, offered to seal up and install an exhaust system in his unit. This never happened. I have to live elsewhere for the summer and have to come back for the school year with this issue. The board did a follow up to see where neighbor was with changes but his reply is he quit smoking (not true) and that it’s not coming from his unit (12 units have shared attic space). I knocked on his door when smoke was coming into my unit – he insisted he was not smoking even though he and his unit smelled like smoke when he opened the door. He complained to the board that he feels harassed. Now, it his word against mine. I have only been to his front door 3 times since September, per his request, in front of the board at the June, 2014 Meeting. I cannot sell since load is upside down and I do not want to foreclose or short sale at this time. What are my options?

Mister Condo replies:

E.G., I am sorry that you find yourself in this unpleasant situation. Battles over second hand smoke rarely go well as it brings issues into play that many community associations aren’t prepared to handle. At the very core is where does one unit owner’s rights end and another’s begins? The unit owner who smokes feels he is right to smoke inside of his own unit. The unit owner who doesn’t smoke feels he has the right to enjoy a smoke-free environment within his own unit. To some extent, both have valid points. However, most condo documents are silent on the particular act of smoking within units. For this reason, the many boards are uncertain how to protect the rights of both unit owners and what steps need to be taken to secure the peace and maintain decorum within the community.

I applaud you for trying to work out a solution with your neighbor. Clearly, those efforts have not succeeded and I recommend that you try a new strategy. The State of Connecticut Department of Public Health is going to be your best friend in this situation. They have published an excellent guide to help folks like you enjoy a smoke-free condominium living experience. Visit their website at http://www.ct.gov/dph/  and, in particular, their page at http://www.ct.gov/dph/cwp/view.asp?a=3137&Q=486714&PM=1 which is their page on Smoke Free Housing for Condominium Owners and Homeowners Associations. You and your Board can follow the guidelines for adopting smoke free policies which are fully enforceable. Both you and all of your fellow unit residents have the right to a smoke free environment. This guide will show you how to get it done.

If you do not seek relief from the board, you may need to escalate the situation by filing a lawsuit against the board for not taking action to ensure a smoke free environment. This will most certainly get their attention and keep the process moving forward. It may take some time and perseverance, but you should prevail and end up with the smoke free environment you are entitled to. All the best!

Secondhand Smoke from Downstairs Condo Neighbor

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J.G. from Middlesex County writes:

Dear Mister Condo,

My son has cancer and can’t stand the smell of cigarettes, but the tenant below me smokes under my deck and the smoke comes in my unit. I have asked them to smoke away from the units they say no what should I do?

Mister Condo replies:

J.G., I am sorry for your son’s cancer and your careless neighbor’s behavior. The battle over secondhand smoke at condominiums, apartments and other areas where people live closely together has raged on for many years. I had a similar questions asked last year and dispensed the same advice I will be giving you. You can read the previous question and answer at http://askmistercondo.com/how-to-stop-secondhand-condo-smoke/.

In a nutshell, there are two steps you should take. You can petition the Board to make smoking not allowed on the property. This is generally quite difficult because the folks who smoke will certainly fight the measure. However, in Connecticut, the law may be on your side.  There are specific steps you and your Board can take to ban smoking the right way. The CT Department of Public Health has published an excellent guide to help you along. Point your browser to their website at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714 and follow their simple steps. Of course, owners that are smokers are likely to oppose the action so don’t expect a simple passage of the new rule. There will be debate, likely heated, about what can be done in the privacy of one’s own home. However, with perseverance, I believe you can create a smoke-free environment for all residents. Good luck!

Smoking Condo Neighbor is a Pain in the Butt!

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S.B. from Fairfield County writes:

Dear Mister Condo,

I have a new neighbor at my condo who is a heavy smoker. I am not a smoker so his smoking is really annoying to me. I find I cannot escape the smell of cigarette smoke from his unit as it seems to seep in through the walls. He also has a habit of sitting on the concrete steps in front of his unit. When he is done smoking, he usually crushes his cigarette on the side of the step and allows the butt to drop to the ground. I am uncomfortable approaching him as I do not know him but I really want this behavior to stop. Do you have any ideas?

Mister Condo replies:

S.B., the battle over smoking in condominiums has heated up across the country but only continues to smolder here in Connecticut. I have plenty of ideas but the reality is that as long as he is not violating any of your condo bylaws, local laws, or state laws, he is well within his right to smoke in and outside of his condo. The first line of attack may be a simple conversation. I wouldn’t lead with the smoking but just get to know your neighbor. Welcome him to the community and politely introduce yourself. When he lights up in front of you, you might excuse yourself and point out that you are allergic or hypersensitive to cigarette smoke. This may be enough for him to think twice before lighting up on the front porch next time. Doubtful, but worth a try.

Your condo bylaws very likely address littering which is what he is doing when he allows his cigarette butts to drop to the ground. You may wish to inform your Property Manager or Board of the behavior and see if they take action. It doesn’t stop the smoke but it may alleviate the litter. You may wish to contact an attorney to see if in fact you can take legal action to stop the smoking. Your bylaws likely allow for peaceable enjoyment of your unit and you may be able to argue that second-hand smoke is preventing you from that right.

Finally, if you and enough other people in the state reach out to lawmakers it is possible that we can see legislation to ban smoking in common interest communities. Such laws already exist in other parts of the country so there is a precedent. Other than that, I am afraid there is little you can do but grin and bear it or move from your unit. It is a sad state of affairs when one unit owner’s right to smoke is in direct conflict with a neighboring unit owner’s right to a safe and clean environment but as more and more people become victim’s of such abuse, it is quite possible that we will see the laws change to protect everyone’s right to healthy air inside their own condo. Good luck!

Upset with Condo Neighbor’s Cigarette Butt Litter

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D.N. from Litchfield County writes:

Dear Mister Condo,

Can my condo association, that I pay $170.00 monthly to, MAKE my neighbor stop throwing his cigarette butts on the property? Because if they can’t, I’ll call my lawyer.  Thank you.

Mister Condo replies:

D.N., regardless of what your common fees are, your Board can only enforce the rules that are on the books of your condominium. Generally speaking, littering of any sort is prohibited on the common grounds of the association. That being said, enforcement of such provisions can prove quite challenging when owners flagrantly disobey the rules they agreed to live by when they purchased their unit. It is even more challenging when the unit is rented out and the tenant isn’t even aware of the regulations.

Since you have indicated that you are willing to contact an attorney to see what can be done, I wholeheartedly encourage you to do so. You should also request, in writing, that your Board be aware of the problem and provide any evidence that you have to support your claim. Ideally, you would need a photo or video clip of your neighbor committing the violation so that your Board was armed to make a complaint. Keep in mind that all the Board can do is issue a warning at the first offense and request an appearance from the rule breaker before they issue a fine on subsequent offenses. Also be aware that your Board is under no obligation to take any action whatsoever so if they don’t act, don’t be surprised. The battle over smoking at condos in general has been heating up for years across Connecticut and across the country. As you can imagine, those who smoke want to be left alone to enjoy their smoking; those who don’t smoke would like to see smoking at condos banned completely. Only time will tell who will prevail. In the meantime, see what your attorney has to say about it. All the best!

How to Stop Secondhand Condo Smoke?

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C.O. from Windham County writes:

Dear Mister Condo,

Hi! We have a nuisance policy concerning odors coming from other units. There are some smokers who live on the first floor of my condo building. Their smoke fumes/gasses enter into the upstairs condos. I have read that there is a 50/50 chance the courts will back the non-smoker and require the smoker to NOT smoke in their unit, as they have no legal protected right. Our Master deed states that the Board may adopt Rules and regulations when necessary for health and other reasons. Can the Board places a rule in the “Rules and regulations” stating that “If an owner has an issue with the second-hand smoke coming from the unit and entering the non-smokers unit that the Board will send that smoking owner a certified letter stating that smoking in their unit will not be allowed due to Owner health concerns.”?

Mister Condo replies:

C.O., the issue of secondhand smoke has come up at condominiums all over the country. In some states, smoking bans have worked in the favor of the non-smokers seeking relief. In Connecticut, the law may be on your side although there are specific steps you and your Board can take to ban smoking the right way. The CT Department of Public Health has published an excellent guide to help you along. Point your browser to their website at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714 and follow their simple steps. Of course, owners that are smokers are likely to oppose the action so don’t expect a simple passage of the new rule. There will be debate, likely heated, about what can be done in the privacy of one’s own home. However, with perseverance, I believe you can create a smoke-free environment for all residents. Good luck!