Real estate Q&A: How can HOA enforce smoking ban in common areas?
Q: At our annual meeting, our condominium community passed a “No Smoking” resolution into our bylaws. It encompassed the entire club area, including the outdoor facilities. We now have a small group of new owners who vocally oppose this ban and continue to smoke at our community pool despite numerous requests to stop. How can we enforce the ban? — Jerry
A: Smoking has been banned indoors in condominium common areas for a while. The recent trend is to ban smoking in outdoor common areas, like the pool, and in limited common elements, such as balconies.
To see if your association has the right to do this, you must review the condominium’s declaration. If allowed, it will need to be voted on by a prescribed majority of the unit owners. As long as all of these hoops are jumped through, the ban goes into effect.
Generally, if a community rule is reasonable, it will be upheld if challenged in court. A smoking ban, even outside on a balcony or in the pool area, would likely be found to be reasonable because of the well-known health issues associated with secondhand smoke.
The logic would apply to similar activities, such as pipe smoking or vaping.
Your community can enforce the new rule the same way it would any other rule. First, a warning letter should be sent to the offending homeowner. If this does not work, they can be fined for breaking the rules.
This situation is becoming further complicated by the rising use of medical marijuana. If it were legal, it seems that recreational marijuana would be treated similarly to tobacco.
However, an argument can be made that prescribed marijuana might be accepted in some cases as a reasonable accommodation under housing and disability laws.
