In the ongoing effort to limit the nonsmoking public's exposure to second-hand cigarette smoke, municipal governments across the country are coming up with increasingly strict bans on smoking in public places—even on public streets and in parks in some communities. Perhaps not surprisingly, more and more condominium associations are following suit.

“There is no real way to determine the number of communities that have instituted smoking bans or otherwise grappled with the issue,” says Donna DiMaggio Berger, a founding partner with the law firm of Katzman, Garfinkel & Berger, based in Margate, “but suffice it to say that secondhand smoke is becoming more and more of a problem in shared ownership communities.”

Changing Attitudes

This is largely a reflection of changing attitudes toward smoking. About 20 percent of the population nationwide consider themselves smokers, and growing numbers of non-smokers are concerned about the health hazards of exposure to second-hand smoke. A 2006 Surgeon General’s report concluded that “there is no risk-free level of exposure to second-hand smoke.”

For managers of multi-unit buildings, smoking has always been a headache. “The smoking issue is nothing new,” says Kenneth S. Direktor, an attorney and shareholder with the West Palm Beach-based law firm of Becker & Poliakoff. “It’s particularly been an issue with buildings that have older ventilation systems because it permeates the walls and the vents in the neighboring units. This is not necessarily the older, rundown buildings. I’ve dealt with some incredibly high end buildings where people who are non-smokers and who've paid a lot of money for their condos have neighbors smoke cigars in the next [unit] and they might as well have someone blowing smoke in their face. In the 30 years I’ve been in this business, smoking has been an issue for most of them. It is hard to put numbers to this but I’ll tell you it’s an issue that has found a foothold.”

“There’s a generation of owners coming in who grew up in more of a non-smoking environment,” Direktor continues. “I think at long last, the buildings with negative air pressure issues have had enough.” When the air pressure inside a building is lower than the pressure outside, “When someone smokes, even when they are outside on a balcony, the negative pressure in the building will suck the air back in, and that smoke will form a ring around the building.”

Given the groundswell of opposition to smoking in most communities, real estate insiders and legal experts point out that it is possible to prohibit smoking throughout a condo property— even within private units, but doing so requires a change in the community's bylaws.

“When it comes to individual units, we are seeing more and more associations take into consideration the effect smoking has on neighboring units and there are many associations that are looking into amending their documents to prohibit smoking inside units,” say Senior Attorney Jacqueline Marzan of The Jay Steven Levine Law Group in Boca Raton. “In a condominium or HOA, the Declaration would be amended pursuant to its own amendment provisions. Typically it’s along the 75 percent [approval] range, but each association and each condominium is different. An amendment would be proposed to membership, and then it would be voted on. They would have to reach the requisite percentage in order to amend the document.”

“It is very difficult for boards to mandate what people can do within their own home,” adds Bill Worrall, corporate vice president of FirstService Residential Florida, a property management firm in Hollywood. “When a complaint is received, the board and management can investigate any openings (and try to seal them) between the condominium units. This is very rare in reality—since units are typically encapsulated from one another due to fire and building codes and unit temperature control requirements. Complaints are typically filed as a health concern or as a nuisance. The unit owner has exclusive use of his/her limited common element; therefore it is again very challenging for the board to mandate legal behavior within these areas, outside of a nuisance claim.”

Bans Vs. Market Value

Some condominium owners and developers worry that a smoking ban could diminish the number of prospective buyers for their units.

“Developers have an interest in selling the units,” says Direktor. “Developers are going to be less likely to impose restrictions that would prevent them from getting the unit sold. The attitude of non-developer owners toward things like leases and pets and smoking is always different, and shows a much greater chance to be restrictive than a developer would be. For a developer it’s all about building and selling it.”

“I haven’t seen any developers creating no-smoking condos—but then again, the developers and building is just starting to pick up again so it’ll be very interesting,” says Marzan. “You have to look at who’s buying in these developments in South Florida. A lot of these condos in South Florida are being bought primarily by Europeans and Canadians, and they have different views about smoking than Americans do.”

But there are two schools of thought on the issue, there are owners that view a no-smoking restriction as an enhancement of the property. “There are people with children who want to live in a smoke-free healthy environment and a smoke free property is seen as an asset,” says Marzan “Smoke seeping into different units is a very hot topic in cooperatives right now.”

Where There's Smoke...

The Florida Clean Indoor Air Act (FCIAA) was enacted by the Florida Legislature in 1985. The main goal of the Act was to protect people from the health hazards of secondhand smoke at work. Seventeen years later, over 70 percent of Florida’s residents voted for a constitutional amendment to ban smoking in all enclosed work spaces. The smoke free law went into effect on July 1, 2003.

Condominiums were originally exempted from the FCIAA, but that exemption was subsequently removed—so the Act can apply to your community in more ways than one. Common areas now may be deemed a workplace for landscapers, pool maintenance workers and others. Therefore an association can prohibit smoking in those areas, even if they're not strictly speaking 'enclosed.'

“A prohibition against smoking in common areas is particularly important if the association has employees servicing those common areas,” says DiMaggio Berger. “Those common areas can become an extension of the workplace, and employees are entitled to work in a smoke-free environment.”

Battles between smoking and non-smoking condominium residents aren’t new, but as complaints about secondhand smoke increase and the evidence of its dangers prove more damning, the conflicts are now being hashed out in court - with the courts being more favorably inclined toward nonsmoking homeowners.

In 2005, the case of Merrill v. Bosser was brought before the court of Broward County. According to court documents, the court began by stating that the case was not about ‘second hand smoke’ as argued by the plaintiff, but about ‘excessive second hand smoke.’ The plaintiff sued the defendant for damages based on theories of trespass, common law nuisance and breach of contract. The court found that the excessive nature of the smoke in this case did constitute a trespass. The court also found that the excessive second hand smoke had created an actionable nuisance for the plaintiff.

“I think most people today have gotten the message about smoking. The Surgeon General warnings have been there for fifty years,” says Direktor. “There’s an increasing aversion to being subjected to secondhand smoke. I think the overall public sentiment is growing heavily in favor of a smoke-free environment.”

Finding a Compromise

“For some communities it [smoking] has been a problem for a long time,” says DiMaggio Berger, “But certainly in today’s world with fewer and fewer places accommodating smokers, it is becoming a more widespread issue. Some communities are being asked to implement smoking prohibitions inside the units, which is naturally harder to enforce. It is always difficult to tell people what they can and cannot do inside the privacy of their own homes - and smokers have rights as well. There will always be smoke in some homes: burnt toast, candle burning or a guest who drops by and lights up a cigarette or pipe, but the real issue is second hand smoke that can leave a private unit and enter a neighboring unit or the common areas. In those instances, the owners’ quiet enjoyment of their property is impacted.”

Different properties handle the issue in different ways but Marzan points out that the rules must be concise and clear. “We have associations that are completely smoke free condominiums and everywhere on the condominium property which include the common area as well as the units,” she says. “And then we have associations that prohibit it and only allow it on the balconies. So we listen to what the associations are trying to accomplish, because even though there has been the banning of smoke for in and of itself because it could be considered a trespass and a nuisance the association wants to be reasonable.”