Monday, October 19, 2015

"What Happens Now"-Condo Smoking Restrictions

A condominium board is receiving complaints from unit owners about second-hand cigarette smoke emanating from within a unit owner’s unit into adjacent units.  The board wants to put a stop to the second-hand smoke but is afraid that it will violate an owner’s rights.  What can be done?
            Most association governing documents (usually in the By-Laws) give express power to the Board to adopt rules and regulations which govern the administration, management, operation and use of the common elements.  This power allows the Board to adopt restrictions which regulate behavior, use of amenities and common areas within the association, and impose fines to enforce violations.   The association Master Deed and By-Laws also normally have provisions within them on how to amend these documents.

Tennessee’s Non-Smoker Protection Act (the “Act”) prohibits smoking in public buildings, museums, banks, child care facilities, elevators and pretty much any place else which is “customarily used by the general public.” Violations of the Act are punishable by fines.  The Act however, expressly excludes private homes and private residences.  So how can an association protect its members?

            Membership in associations is created by the acceptance of a deed for a unit within the association.  The association members or the association, through its elected board, may vote to make the condominium common areas and/or individual units, smoke free by either amending the association master deed or adopting rules and regulations which prohibit smoking, and defines second-hand smoke as a nuisance, the violation of which is enforceable in the same manner as other restrictions in the governing documents.

            So that existing owners and occupants who wish to smoke are not unduly burdened, smoking restrictions may identify designated smoking areas within the association.  In the alternative, the association may adopt a complete ban on smoking anywhere (including within individual units) within the association property.

            All rules and regulations should have a violation notice requirement, reasonable fine policy and enforcement provision.  Once the members vote to amend the master deed or the Board adopts Rules and Regulations, the document created by the association attorney should be recorded at the County Register of Deeds’ office, and a copy should be mailed to all owners.  If the association has a website, a copy of the recorded document should be posted there as well.

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