J.H. from Massachusetts writes:
Dear Mister Condo,
I am president of the Board for my condo. The son of a unit owner and his girlfriend living in the unit are extremely heavy smokers which is causing the unit owner next door great consternation as the smoke seeps through the common block wall between units. We have been dealing with this for some time, and have sent letters to the owner and offending parties, but they are addicted and won’t cease.
The offended party is tearing off walls to try and smoke proof the area and wants to send the condo association the bill for perceived indifference. We are limited in what we can do about this. We have by-laws that cover being a nuisance to your neighbor, but are unsure of how to enforce them given that these people are very addicted and I doubt simple fines will be the answer. In your opinion what is the next step?
Mister Condo replies:
J.H., smoking is a very serious concern for many condominiums around the country. You need to speak with your association attorney to determine what legal steps you can take to make your community “smoke-free”. I am not an attorney but I do know of several who are quite knowledgeable about this subject matter in your state. Two of them have published articles that you need to read:
The bottom line is that second-hand smoke can be considered a nuisance. Clearly, for your non-smoking unit owner who is battling this fight first-hand, nuisance barely begins to describe what he is living with. I find it unlikely that he can charge the association for repairs and changes he is making to his own unit but, in court cases where laws are often interpreted, you never know. I think it is more likely that your association can ban smoking, which will protect the association. Further, beyond fines, it may be possible to evict those who repeated refuse to follow the rules. In some states, smoking in a high-density housing area where smoking is prohibited can be considered a crime. I am not saying that you will have the local police come out to get your smokers arrested but you can make their decision to smoke a lot less appealing. There is no constitutional “right to smoke” so if the association passes a “no smoking” rule, it would very likely stand up to a legal challenge. My hopes for you would be that the smokers would realize this is not the community for them to live in and that they should consider relocating to a “smoker friendly” environment, such as a private home. Best wishes!