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SMOKING IN AND AROUND CONDOMINIUMS

by | Oct 14, 2015 | Condominium Law |

Cigarette Smoking in Condos: Is it Right?

By Michael Brandt, Brandt Law Group, and Michelle Ein, Law Offices of James L. Strichartz
What are the essential legal principles protecting individual condominium unit owner rights, whether that means the right to smoke, or the right to not be affected by their neighbors’ smoke? Should condominium associations get involved, and why? Attorney Michael Brandt lays out the discussion on owners’ rights, and attorney Michelle Ein addresses the matter of associations’ obligations.

Thanks to the spate of research on the health consequences of second-hand smoke on nonsmokers, there is no longer a debate that the consequences are bad. Since the 2006 Surgeon General’s report1 confirming that second-hand smoke causes premature death and disease in adults and kids who do not smoke, and that exposure has immediate, harmful health effects, we have entered an era of change regarding this issue.

Society increasingly expects government to protect us from second-hand smoke. Currently, at least half of all states have enacted some type of anti-smoking legislation, whether in worksites, restaurants and bars, or shopping malls.2 Not surprisingly, community association members’ expectations mirror society’s, and litigation over second-hand smoke exposure in condos has cropped up nationwide.

Condominium Unit Owners Can Protect Their Rights

CONTRACT RIGHTS.
If a condominium unit owner purchases a unit in a condominium where smoking is not prohibited by the terms of the Declaration or Bylaws, a unit owner should be able to smoke in his or her condominium unit and in the common areas. That right is qualified by the rights of other condominium owners to be free from the intrusion of second-hand smoke into their condominium units.

Benefit of the Bargain. When a purchaser of a condominium unit negotiates for the purchase of the purchaser’s unit, he or she is basing such negotiations on the conditions of the condominium unit and the common elements at the time of such negotiations. A proactive purchaser will review the governing documents of the

1 The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (June 2006). Washington state recognizes that tobacco smoke is a pollutant (RCW 70.162.005) and that second-hand smoke is known to cause cancer in humans (RCW 70.160.011).
2 Cigarette Smoking Prevalence and Policies in the 50 States: An Era of Change – The Robert Wood Johnson Foundation ImpacTeen Tobacco Chart Book. Giovino GA, Chaloupka FJ, Hartman AM et al., Buffalo, NY: University at Buffalo, State University of New York, 2009.