Wisconsin law prohibits smoking in the common areas of all condominiums.

Newly built condominiums can relatively easily prohibit smoking also in individually owned units, although enforcing a smoking ban in privately owned units can be challenging.

Adding a smoking ban to private units in an established condominium is a stickier problem.

For example, one condominium community we represent has this provision in its original condominium declaration dated in 2005:

Smoking is not permitted in any Common Elements or Limited Common Elements within the Building or Parking Garage except on balconies…. Smoking is permitted within the Residential Units.

The community with this declaration provision is a single high-rise building with common hallways and several apartment-style units on each floor, so it is easy to predict that many owners would want a building-wide smoking ban. But because smoking is specifically approved in the declaration, if a majority of residents now want to ban smoking on balconies or within the private units, they will need to amend the declaration. Amending the declaration requires a vote of over two-thirds of the owners – not an easy vote to accomplish in many communities.

Condo owners who smoke may object to the new smoking ban.

When owners who smoke are faced with a new prohibition on the activity within their private units, don’t count on their response being to join a smoking cessation program. Some go to court. In some of these cases, the courts have respected the smoking owner’s reasonable expectation in purchasing their unit that they would be allowed to smoke within their unit. Regardless of the outcome, these cases always involve the court’s careful analysis of all the circumstances. A condo association needs to be thoughtful and considerate in enacting a property-wide smoking ban.

Specific circumstances the court will look at when an established owner objects to a new smoking ban include,

• The provisions of the condo’s declaration and the association’s bylaws. If the declaration and bylaws are silent on smoking, a “nuisance clause” that prohibits offensive, noxious or annoying behavior in the community may be seen as notice to owners that future regulation of smoking is possible. Nuisance clauses have been interpreted to apply to activity within a unit which negatively impacts living conditions in another unit or a common area.
• The physical characteristics of the condominium are a significant factor. If units share a common ventilation system, balconies are stacked or close together, or the building(s) are older and walls separating units are porous, a court may be more willing to uphold new smoking prohibitions.
• Prior attempts to prevent smoke from entering other units. If the association undertook extensive, unsuccessful efforts to try to prevent smoke from entering other units or the common areas before enacting a smoking ban, a court may be more inclined to allow application of the new ban to established owners.
• Why the smoking ban was enacted. If the smoking ban is enacted because one or more non-smoking owners suffers significant adverse health effects from second-hand smoke infiltration, and there have been multiple requests to the association to do something about the problem, the court may find a smoking ban is a reasonable response.
• Whether the condo board gathered owner input. If the process the association’s board used to enact the smoking ban allowed for owner input, a thorough review of the plusses and minuses, and an owner vote, the objecting owner will have a more difficult time successfully contesting the new ban.

Condo community benefits vs. smoker’s rights

Smokers objecting to new prohibitions need to be aware that while a smoke-free community may deter some buyers, there is increasing demand for non-smoking properties. Also, smoke-free buildings present the benefits of saving the association money in painting and repairs, avoiding installation of ventilation and smoke abatement mechanisms and decreasing the risk of fire. The smoking owner will also have to contend with courts’ widespread recognition that there is no constitutional right to smoke, and there is plenty of medical evidence second-hand smoke poses a health risk to non-smokers.

Owners in established communities advocating for a new smoking ban need to recognize that the ban will upset owners who have been smoking in their units for years. If those established smoking owners take legal action, presentation and analysis of comprehensive facts will mean significant legal costs for both sides. It is this possibility that leads many association’s enacting new smoking bans to “grandfather” (exempt to some extent) existing owners who smoke. We have seen at least one community ban the resale of units to smokers while allowing existing owners to continue to smoke in their units, provided, they limit smoking and use techniques and practices to prevent smoke infiltration elsewhere.

Yet another facet to consider is if an resident complains of unwanted exposure to second-hand smoke, the association’s board members do not have the luxury of ignoring the problem or directing neighboring owners to work it out among themselves. There have been cases where courts have ordered the association to pay damages to the resident suffering from second-hand smoke where the association ignored repeated pleas for help.

Amending condominium bylaws

When an association decides to add smoking restrictions, the new restrictions should be thoughtfully drafted and enacted carefully. Thoughtful drafting means defining what is meant by “smoking”, for instance, does it include cigarettes, cigars, pipes, e-cigarettes, and/or marijuana including medical marijuana? Smoking restrictions should define the mechanisms for enforcing the restrictions. Smoking bans or aggressive restrictions are usually best enacted through an amendment to the declaration. Amending a declaration requires owner voting which means owner education and following the statutory steps for an effective amendment.

Banning smoking within private condominium units in a long-established community is likely to be contentious. Regardless of your position on the issue, an attorney experienced in condominium law can provide valuable assistance.