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!