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!
A related topic is the thorny issue of vacation rentals in Seattle condos. If someone smokes in a unit, he or she doesn’t affect anyone else in the building. But vacation renters affect everyone. They jam the hallways. They tend to be noisy and obnoxious. They place a burden on the condo staff, without additional compensation. They pose security risks because they are not screened. There is an inherent conflict because the apartment owners don’t care about anything except collecting money; a hotel owner or a landlord would be concerned about the impact on other guests or tenants, who could leave if they were disturbed. It seems that there is a form of unjust enrichment here.
What laws govern these vacation rentals in Washington State and/or Seattle? Oklahoma just passed a law saying that vacation rentals have the legal status of hotels. New York and Chicago say apartments can’t be rented out for less than a month. Seems like Seattle is behind the curveball on this one!
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Can Declarations be amended to prohibit the renting of units with out the super majority rule? Or is prohibiting leasing considering change of use?
Catharine – We do not practice general real estate law, but if you would like a referral to an attorney who can answer your questions, please call my office and I will track one down for you!
Ellen – The answer to your question is that a prohibition on leasing IS considered a restriction on use and must be adopted using the super-majority requirement that applies to your condo.
If it’s an Old Act condo (created before July 1, 1990), the super-majority required is the same as the percentage required to pass any amendment. That percentage can be found in your Declaration.
If it’s a New Act condo, RCW 64.34.264(4) requires that 90% of the owners PLUS all owners “particularly affected” (or such higher percentage specified by the Declaration) must vote for an amendment that contains a restriction on use in order for it to be enforceable.
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Thanks for your comment that I forwarded to our management company but they still maintain that since our declarations indicate that we only need 68% to change the Declarations that this applies to the prohibition of leasing and that with a 67% we can eliminate the rentals in our building. I disagree. Do you have time for one more short answer? Thanks so very much.
Ellen, beyond the general information given in my comment above, I can’t advise you on the particular requirements for your association. In order to do that, we’d need to (a) review your governing documents and (b) establish an attorney-client relationship so that we could give you association advice without violating our ethics rules.
I will say that I would not rely on the opinion of your management company in this matter, or anything else requiring legal expertise. Your association should consider establishing a relationship with an association attorney so that you have a resource when questions like this come up!
Valerie – is prohibiting smoking in “limited common areas” as simple as adding a rule to the R&Rs stating that it’s prohibited?
Chris, it is almost always that simple. To be 100% sure, we’d need to check the declaration for the particular association in question. Most declarations grant the Board the authority to regulate behavior in common and limited common areas. Provided the declaration in question conforms with the vast majority of the documents we see in our practice, then it really is as simple as the Board adopting a rule and publishing it to the owners.
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Hello – My realtor Ann Nordling gave me your name and blog. Our condo has smokers who violate the R & R Bylaws by smoking in their units – tobacco and marijuana. This leaks out into other units and into the hallways. At our Annual Meeting Feb. 2017, we voted to fine the offenders $300 but we are unable to get the HOA Board to levy the fine since they don’t feel they have solid proof of who the smokers are… ?
We have a tenant whose landlord has not been in his unit for a long time and we suspect this tenant of being the major offender. However, the landlord still will not actually go into the unit and make an inspection for various reasons. Four other owners are protesting the second hand smoke along with me but we feel stuck. Do you have any suggestions? Thank you
Hi Mary,
Thank Ann for sending you in our direction! I’m sorry to hear about the problems you all are dealing with in terms of smoke in your community. Smoking is considered a “use” of a condominium unit, and it cannot be banned by the Association without an amendment to the Declaration.
Have any of you who are bothered by the smoke issues considered running to be on the board? It may be that you could exert some influence in such a position, perhaps by persuading the other board members to request that the owner whose tenant appears to be such a problem conduct an inspection of the unit. There may even be authority for the Association to request a direct inspection if the owner won’t “play ball.”
Beyond that I can’t offer much as doing so would cross the line from general info to legal advice. I wish you all the best in working these problems out.
Valerie