Methods of enacting a no-smoking rule
There are three ways we have seen clients enact (or attempt to enact) a no-smoking rule:
1) Amendment to Declaration/CC&Rs: This method is likely the most difficult and costly way to enact a smoking ban, but it will be given the most deference by courts and be relatively strong in the face of legal challenges.
2) Amendment to Bylaws: This is the wrong place for a use restriction, and no more enforceable than a rule.
3) Board rule or resolution: A new rule or resolution is the easiest way to implement a smoking ban, but would only be effective for common areas and limited common areas and would not be enforceable to prevent smoking in individual units or homes.
Risks and benefits of a no-smoking rule
An association that allows smoking might face a potential legal challenge from an individual with a serious health condition that is affected by exposure to secondhand smoke. The offended occupant might ask for relief by using one of the disability statutes. If the courts find that: 1) the requesting occupant is disabled; and 2) a smoking ban is a reasonable accommodation, the association may be required to impose one.
A resident would be unlikely to succeed in a lawsuit against either the association or smoking residents on common law nuisance grounds. Washington courts have rejected efforts by homeowners who pursue nuisance claims against neighbors smoking on their private residences. However, a resident bothered by secondhand smoke might be able to pursue an action against the association to enforce a nuisance clause contained in a Governing Document, prohibiting an owner (or resident) from engaging in an activity that affects the use and enjoyment of another owner’s property.
A no-smoking rule could have several benefits to an association, including:
1) Increased desirability and demand for the community;
2) Cost savings from not having to deal with cigarette related damage and cleaning;
3) Reduction of fire risks (and possible insurance discounts); and,
4) Avoidance of nuisance claims and reasonable accommodation requests.
Please leave your questions in the comments, or feel free to contact us directly.
