Our clients often ask us about what authority, if any, they have to regulate or even prohibit smoking – in common areas, limited common areas, or even inside individual units. Generally speaking, associations have the authority to regulate or prohibit smoking in the common areas as well as limited common areas like decks. The best way to do this is for the Board of Directors to adopt a rule regarding smoking in common areas and limited common areas. Once the rule is formally adopted and published to the owners, it can be enforced against owners and other residents (and visitors) using the association’s due process and fine policy.
If an association wants to regulate smoking inside individual units, a declaration amendment is probably necessary. If it is considered a restriction on use to prohibit smoking in individual units, then the amendment would require the consent of all affected units and a 90% vote of the rest of the owners. If prohibiting smoking in individual units is not considered a restriction on use, it could be done like a typical declaration amendment, but this issue has never been tested in Washington courts.
As a practical matter, getting 90% of the owners to agree to a ban on smoking in units can be challenging, especially if any of those owners are smokers! One way to get the required votes is to propose a declaration amendment that prohibits smoking but which grandfathers in any existing smokers, contingent on their unit becoming smoke-free when they sell or rent it out.
Another way to deal with the problem of smoking in individual units is that owners who are experiencing problems with secondhand smoke can pursue nuisance claims against owners who smoke, and the Association does not have to be involved. Our research reveals that non-smokers have relative success pursuing these claims against their neighbors when the offensive resident is a “heavy smoker.” The Association may be dragged into the dispute, however, because the walls & floors that separate the homes may be common elements which the association is responsible for.
We’ll be discussing Smoking & Associations more in-depth in a free webinar on September 8th at 11:00 am. Register for our Smoking & Association webinar by clicking here.