Edited by Brian P. McLean, Leahy.ps
This is the question posed to me by The Seattle Times in July 2007, which quoted me extensively on the subject:
Kirkland [Seattle] attorney Brian McLean, of the firm[Leahy McLean Fjelstad], says that “with the unanimous consent of owners, an unconditional restriction on smoking throughout the entire condominium that applies to current and future owners is legal. Where one current owner objects to an unconditional ban, the issue becomes more complicated because condominium living is complicated.”
As McLean explains, a condo is created by a recorded Declaration of Condominium.
“The declaration distinguishes between common areas (e.g., shared streets, sidewalks, green areas, hallways, elevators) and owner units, and includes restrictions on the use of both,” he says. Condominiums are being developed today in the Northwest that include, before the sale of any units, smoke-free restrictions that apply to the entire property. I believe such smoke-free restrictions are legal and enforceable.
“Banning smoking within a condominium becomes controversial when associations consider changing the status quo, as Washington state has recently done in public places, from smoke-tolerant zones to smoke-free zones. Owners expect that what they do within their units is their own business, and that their permissive use of their unit at the time they took ownership is inviolable. Even outside their units, in common areas, owners today have strongly held beliefs about their right to smoke, or the rights of others to smoke, or their right to live in a smoke-free environment.”
As for how to ban smoking, McLean says there are two routes. By having the owners adopt a restriction or having the board of directors adopt a rule. He explains the difference:
“Restrictions require owner involvement and consent, become a matter of public record, and can be enforced against future owners. Restrictions are better suited to solve complex and divisive problems that affect the fundamental nature of ownership and use within a condominium. Restrictions can sometimes be adopted that affect only future owners, thus providing a way to gradually bring about change while accommodating the desires of current owners.”
Rule-making, on the other hand, “is not as well suited to solve complex and divisive problems such as smoking,” McLean says.
“Rules can often be changed on a whim (e.g., when the new board president pulls out a cigar at December’s board meeting and announces the ‘winds of change’). Having said that, as a general principle, a rule that bans smoking in the common areas when it poses a nuisance to others would probably be legal and enforceable.
“Setting aside a smoking area in a sheltered part of the common area, thus keeping second hand-smoke from unreasonably affecting other owners, is the kind of arrangement that may strike a reasonable balance between those who smoke and those who are bothered by smoke.”
However “a rule that absolutely bans smoking within units, unless supported by a restriction in the condominium declaration, would likely lead to a dispute between owners (sometimes more dangerous than second-hand smoke),” McLean says.
“Until the Legislature or a court rules on the issue, absent unanimous consent of the owners, and with every condominium being a little different, there will be continued uncertainty about the extent of and limitations on the exercise of association power to adopt restrictions on smoking within a condominium, whether in a common area or in an owner’s unit.”
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