Can Condominium Associations restrict Smoking in the Units?

On June 27, 2005, I posted an article on whether a condominium association can restrict smoking in the common elements. Under Hawaii Condo Law, a Board of Directors normally has more limited ability to regulate conduct in the units when compared to the common elements. Under Section 105(b) of the Recodification, house rules may affect the use of or behavior in units that may be used for residential purposes only to:

1. Prevent any use of a unit which violates the declaration or bylaws;


2. Regulate any behavior in or occupancy of a unit which violates the declaration or bylaws or unreasonably interferes with the use and enjoyment of other units or the common elements by other unit owners; or


3. Restrict the leasing of residential units to the extent those rules are reasonably designed to meet underwriting requirements of institutional lenders who regularly lend money secured by first mortgages on units in condominiums or regularly purchase those mortgages.

Recently a California law firm has suggested that a condominium association can prohibit smoking inside units. The article suggests that nuisance law may give associations the right to regulate smoking in units. Nuisance is the interference with the reasonable use and enjoyment of land. "Unreasonable interference with the use and enjoyment of the unit or the common elements" under the Recodification is substantially same as the definition of nuisance.

My friends, Colorado Condo Attorneys, Tom Hindman and Loura Sanchez have summarized the factors considered by the courts in determining whether a nuisance exists. Their article about smoking and condominium associations states:

Case law instructs that the following factors play into whether a given activity qualifies as a nuisance: 1) type of neighborhood; 2) the nature of the wrong complained of; 3) proximity of those alleging injury; 4) frequency/duration; 5) continuity; 6) damage or degree of injury; and 7) number of complaining parties.

As noted by Tom and Loura, nuisance lawsuits are difficult to prove. In a smoking case, this is made even more difficult because smoking is something that one would normally consider appropriate behaviour in one's own home. Courts will often consider whether something is a traditionally accepted use when determining whether a nuisance exists.

Despite this, a Massachusetts Housing Court jury ruled that a tenants' smoking was so significant and unreasonable that it constituted a nuisance in Harwood Capital Corp. v. Carey. As a result of this recent ruling, the eviction of the smoking tenants was was upheld even though the landlord was aware that the tenants were smokers when the tenancy began. Associations should not consider this a sign that courts would be willing to allow them to prohibit smoking in units. First, the Massachusetts Housing Court decision cannot be cited in any other case because it is a trial court decision. The fact that it is a Massachusetts case only further removes it from Hawaii condominiums. Second, the jury was dealing with the termination of a lease, not an ownership interest. While it is hard to predict how juries will act, it is likely that a jury would treat an owner smoking in his unit differently from a tenant that might have to move to another unit. Third, the ruling does not mean that an association could adopt house rules that contain a blanket prohibition against smoking in the units. Whether smoking in a unit constitutes a nuisance will depend on a variety of factors that would be unique to each situation. The factors described above would have to be considered to determine whether the specific facts present were sufficient to prove a nuisance.

It is possible, however, for associations to adopt By-Laws that would prohibit smoking. In addition, in extreme cases, a particular resident's smoking may constitute a nuisance. Even if a particular situation constitutes a nuisance, an association would need to consider whether it is willing to expend common funds to stop a resident from smoking in their unit. Absent unusual circumstances, an association is not required to file a lawsuit for every violation.