Sick of cigarette smoke in your condo building? Well, you’re not alone. A growing number of Massachusetts condominiums are considering adopting smoking bans.
How can a condo association ban smoking? That’s a good and not-yet-resolved question. As I described in a past blog post, condo associations have very limited ability to control behavior within units. Generally, rules that impact what you do in your condo must be put in place before you buy.
For that reason, some condo complexes (such as Boston’s Harbor Towers) have banned smoking while grandfathering current owners and tenants. This dodges the legal limitations of condo associations. As you can imagine, though, it’ll be years before Harbor Towers will be smoke-free.
Other buildings (such as Millennium North, part of Boston’s Ritz-Carlton) have taken the much more controversial route – banning without grandfathering. Not surprisingly, this immediate ban landed the association in court. Condo practitioners, like me, are anxiously awaiting the result. This case will likely determine the validity and strength of condo smoking bans in Massachusetts.
Although the association has won in the early stages of litigation, I’m not convinced that they’re on solid legal footing. The smoking ban surely reaches behavior inside private condo units, where condo trustees’ power is very limited. Remember – condo associations exist to govern the common areas of the condominium.
So, the legal issue (I think) comes down to this — Is smoking a private activity done inside your unit, or is it something that pollutes, and therefore takes place in, a condominium’s common areas?
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