Where there’s smoke, there’s a conversation about association rules
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Where there’s smoke, there’s a conversation about association rules

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We continue to receive questions and comments about our recent columns on smoking, as well as the rules that condominiums and other associations are putting into place about smoking cannabis. So, we thought we’d share a few of them. Our thoughts will follow.

Q: Last April our condominium amended our association documents to prohibit smoking in our common areas and in the limited common elements. This restriction included all types of smoking, including vaporless tobacco products and e-cigarettes. The amendment also requires the owners, tenants and their guests to take steps to prevent the migration of smoke from within units to the common areas and limited common elements. It specifically mentions how people should avoid smoking near an open window or door.

How should the board enforce this document when there are several residents who smoke and continue to smoke? They voted against the amendment, but the amendment passed anyway. They smoke but lie about their smoking. Other owners have not seen [one neighbor] smoke, but neighbors clearly smell the smoke. We thought about using quadcopters to video his windows and balcony to see if he’s, smoking but we’re concerned about privacy issues and an invasion of privacy suit. We are very frustrated over this situation. This owner has a total disregard and disrespect for his neighbors and the board.

The management company has sent him letters, but he claims he has not received them. What should be our next step? We would like to avoid hiring an attorney, but does all of this mean we’ll have to do that anyway? What would an attorney do?

Comment: Our condo association passed a no-smoking policy a few years back. There was one unit owner (out of 34) who smoked, and he was grandfathered in, with the stipulation that, when he smoked, all doors and windows must be closed. After a couple of years, he sold and moved away. The more folks get upset publicly about the smell of smoke, the more likely that things will change.

Comment: What you may have overlooked in your column is that when a smoker smokes on her balcony, that action may not be allowed if the balcony is considered a common area of the building rather than an exclusive area of that unit owner.

Comment: I am an owner in the registered no-smoking condominium building in D.C. What can I do when the association will not enforce the no-smoking policy even though I have provided the board of the association with good information as to where the smoke is coming from?

Our take: On the comments relating to occupants that continue to smoke even after the no-smoking rule has been enacted: In both of these situations you’ll need to elect a board (or enough board members) that will treat the smoking issue in the same way it treats other violations of the building rules.

Most association boards would prefer to know that an owner has broken a rule right when it happens. Many of those same associations fine unit owners for breaking rules, including paying their assessments late, offering short-term rentals, and any other association rules. Many associations will fine an owner a small amount for the first violation but increase the fines as subsequent violations occur.

When the unit owner refuses to pay those fines, the association can then go to court to enforce payment. In some cases, the association can enforce payment of the fine by foreclosing on the unit and using those proceeds to pay any amounts that are outstanding. (No association will file suit over $100; but if the fines escalate, the financial cost and time cost of legal action might be worthwhile.)

If you live in an association that is proactive, the association may have a strict set of fines in place for a wide variety of rule violations. So, if unit owners violate the no-smoking rule, the association can fine them. For fairness purposes, the board can set up a procedure for allowing the unit owner to contest the violation. If the unit owner contests the violation and loses, the unit owner will have to decide on whether to pay the fine (and any others handed out for future rule violations) or conform to the no-smoking rule.

Seeking to foreclose on the unit owner for the non-payment of outstanding fines is a hardline approach, but many associations handle rule violations and fines in this way.

On the other hand, if your association is not willing to step up and enforce your association rules, you might be out of luck. You will need to vote in board members that are more willing to enforce the no-smoking rule and will be willing to create their own “hammer” to make sure all association rules are followed. In the case of a unit owner who hides their smoking habit, the association can work with adjacent owners to uncover which unit owner is smoking, and the issue the fine.

To our reader who mentioned that balconies and other areas outside a unit are common areas, that’s true in some, but not all, properties.

When a unit owner has exclusive use, access and control over an area that is outside of a unit, the person that drafts the association documents will designate that area as a limited common element (LCE). When you have an LCE, that unit owner generally has the obligation to clean the area and take care of the general maintenance of the area. It would be hard for anyone else to take care of routine maintenance of those areas without coming into the unit to access that particular outdoor area. However, whether the area is a common area or LCE, the association may have the right to pass rules to handle issues that affect the building, common areas, LCEs and other unit owners.

Lastly, we must note that the grandfather rule is quite common. Associations may use this procedure to allow unit owners to continue to rent out units, or to allow occupants to smoke in their units, even if renting and smoking is prohibited. In some situations, when homeowners install fences and associations pass a no-fence policy, the association can allow the owner that has put up a fence to keep it up until it must be replaced or until a new owner buys the home.

Grandfathering tends to be a fairly good compromise that gives current owners the right to use their units as they intended when they purchased them while allowing the association to enforce a particular rule on more and more units over time.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)

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