In preparing for a presentation I will be doing this January, I have done a bit of research into whether condo associations can prohibit smoking within their communities.
Condo associations almost always have the ability to restrict smoking in common areas, and even limited common areas like decks and patios. But can they prohibit smoking within the apartment homes?
The answer is largely unanswered by the courts, but it would appear that if an association amends its declaration with the proper super-majority vote, that such a prohibition would be valid. There is only one court case that specifically addresses this matter, and it ruled that the declaration amendment was valid because it had a 75% approval from the owners and was not arbitrary or passed for any other purpose.
There is a noticeable lack of case law that would strike down an amendment that prohibits smoking within units. This does not mean that there is no risk to an association that makes such an amendment and tries to enforce it. There is an argument that prohibiting smoking is a restriction on use of the unit, which under the Condominium Act (applicable to condos formed after July 1, 1990) would require approval of 90% of the owners and every unit particularly affected. That would mean that you can pass the amendment but not enforce it against any owner that voted no, or just did not vote.
The most effective means of dealing with this matter may be to pass an amendment that would “grandfather” the current smokers so that over time the condominium would become a smoke free facility. This would allow current owners who smoke to vote in favor of the amendment as well.
It may be that we need to see associations take the step of passing such an amendment, and accepting that it could be challenged. Because until we start getting court decisions on the matter, it will remain uncertain. There is clearly a growing majority of the population that wants to live smoke free, and this is a way to help move us towards that goal.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!