Smoke-Free Condominium Units?   Leave a comment

Just a few years ago, no one had even heard of smoke-free condo units. Now, much like the change in hotel accommodations, they are popping up across the country. This is made possible by the fact that the right to smoke is not protected under law, according to the U.S. Department of Housing and Urban Development.

As long as the smoking policy is not used to target a protected class, a condominium is legally free to restrict or prohibit smoking in its building. A U.S. Housing and Urban Development Legal Counsel letter of 2003 states that “the right to smoke is not a right protected under the Civil Rights Act of 1964 because smokers are not a protected class under federal law.”

However, this restriction could cause some unit-owners to feel burned. What owners need to keep in mind is that condominium living, at its core, requires that owners give up a little of their independence due to the fact that they are living so close to one another. Your condo unit may be your castle, just realize you share the moat with others!

In essence, the decision to try to go smoke-free in a condominium is one that would need to be approached with care. Despite the fact that it may be broadly permissible by law, there are strong factors weighing against creating restrictions on what people can do inside their homes, if there’s no demonstrable harm to others. Is there smoke travelling between units? Is there a compelling health interest to be served? A nuisance avoided? Can the problem be resolved through means other than an absolute prohibition?

The analysis about whether such a restriction would be enforceable would also depend on when, in the life of the condominium it is being adopted, and how it is being adopted. Finally, the wording of such a prohibition should be considered with great care. As in all legal documents, there can be fairly extensive unintended consequences arising from how the restriction is worded.

By: Amy H. Bray, a partner in our Commercial Real Estate Department.


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