DPH: Smokefree housing for Condos
Tobacco

Smoke Free Housing

for

 Condominium Owners and Homeowner Associations

Condominium owners can be affected by secondhand (SHS) and thirdhand smoke in the same way as apartment tenants.

{condo building}     

Tobacco smoke drifts throughout buildings from one condo unit to the next, seeping into units through crawl spaces, attics, basements, light fixtures, plumbing, walls and can enter from people smoking outside doorways and on balconies and patios.  Thirdhand smoke can then settle into carpet, walls and other surfaces.  Additionally, heating, ventilation, and air conditioning systems can also distribute tobacco smoke throughout a building.

Smoke- free policies protect condominium residents and their guests.

 

Ventilation is not the Solution.

According to the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE):

  • There is no known ventilation or air cleaning system that can eliminate all the toxins from another resident’s smoke.
  • Sealing outlets, cracks and other places where smoke seeps through does not eliminate the smoke traveling from unit to unit.
  • ASHRAE encourages smoke-free policies as "the only complete solution to the problem of secondhand smoke."[1]                                                   

Reasons for Smoke-free Policies  

Smoke-free policies protect residents.

{woman with oxygen mask}  
  • In 2010, the U.S. Surgeon General released a report stating there is no safe level of exposure to tobacco smoke. 
  • Health effects of SHS include cardiovascular disease, respiratory infections, asthma, bronchitis, stroke, ear infections and Sudden Infant Death Syndrome (SIDS).

  • Smoking is the leading cause of home fires and the number one cause of fire deaths in the United States.
  • Cigarettes cause approximately 1 out of 4 fires and these fires kill 700-900 people every year.(2)
  • Property losses from smoking-material fires total hundreds of millions of dollars every year.[3]
      {fighter fighter on ladder at house fire}
  • Cleaning and maintenance costs decrease when smoking is prohibited.
 

Condo Associations Can Legally Make their Buildings Smoke-Free

{hispanic family}  
 
  •  Smoking is not a legal right.  Smoke free policies do not infringe on the legal rights of individuals.[4]
  • Smoke-free policies establish guidelines for where smoking is permitted.  The policies do not mean that a smoker is banned from live there.
  • Most condominium buildings have a Homeowners Association (HOA).  If you own a condo in the complex, you are automatically a member of the HOA.
  • The HOA can vote to restrict smoking in common areas, such as laundry rooms, clubhouses, lobbies, stairwells, hallways, pool areas and playgrounds, as well as restrict smoking in individual units including patios and balconies.[5]
  • HOA members can vote to amend the Complex’s by-law documents, the Declaration of Covenants, Conditions and Restrictions (CC&R) and the Rules.
  {no smoking sign}      
  • Often, the CC&R or rules contain a "nuisance clause" that prohibits owners and their guests from engaging in any activity that interferes with another owner’s peace and well-being. Tobacco smoke can be added to the definition of a nuisance in these documents.[6]
  •  For additional information, read your own association's rules for changing building policies. Contact the Association’s legal counsel before changing the CC &R since this is a legally binding document.
     
  • Steps to Go Smoke Free

    {2 women talking}  
    • Talk with your neighbors to find out their interest in smoke free policies for the complex.  Distribute a survey to collect the information and/or a petition to go smoke free. (see sample)
  • Read through the association’s CC&R and Rules to understand how to changes can be made. 
    • Gather the survey and petition results and information on the benefits of smoke free policies.
    •  Attend the association member and board meetings. Plan to speak during an open forum at a board meeting, or request to be added to the agenda to discuss going smoke free and educate the members on the benefits.
    • Have the board and membership vote on the policies.
  • Work with the condo board to follow the appropriate procedures for changing building policy, including contacting legal counsel if apropriate.                                                      
  • {group of business people meeting}  
    • Educate and notify the residents of the changes.  Post signs to notify resident’s, guests and service people of the smoke free policy.                 
     Adapted from http://www.smokefreewashington.com/apartments/condos.php

    Owners have Rights that Protect Them 

    •  Voluntary compromises and settlements to SHS complaints can be reached by reviewing and enacting the “nuisance clause’ in the CC & R and Rules.
    • The Fair Housing Act (FHA)  prohibits discrimination in housing against persons with disabilities, including people living in condominium complexes with more than four units.[7]
    • People with severe breathing problems or other chronic conditions that are worsened by secondhand smoke may qualify under the FHA.
    • Condominium owners can take legal action against a condominium board or the smoker.  Owners have been successful in their SHS claims using common laws that have included:

    -Breach of the covenant of quiet enjoyment            

    -Negligence

    -Breach of warranty of habitability                         

    -Nuisance

    -Harassment              

    -Constructive eviction                                          

    -Trespass[9]

     

     

     
    Condominium Smoke Free Strategies and Tools
     
     
     
     

    This information is for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney.

     

     

    Additional Resources:

    National Center for Healthy Housing: www.nchh.org

    Smoke-Free Environments Law Project: www.tcsg.org/sfelp/home.htm

    Tobacco Technical Assistance Consortium: www.ttac.org

    Tobacco Control Legal Consortium: www.tclconline.org

    Technical Assistance Legal Center: www.phlpnet.org/tobacco-control

    American's for Nonsmoker’s Rights Foundation: www.no-smoke.org

    Smokefree Apartment House Registry,   http://www.smokefreeapartments.org

     
     
     

    [1] American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. , ASHRAE Position Document on Environmental Tobacco Smoke, 2008

    [2] TobaccoFree Kids.org

    [3]  http://www.usfa.dhs.gov/downloads/pdf/tfrs/v5i5.pdf  U.S. Fire Administration / FEMA

    [4] Technical Assistance Legal Center, There is No Constitutional Right to Smoke, Public Health Institute 2005

    [5] Public Health Law & Policy Technical Assistance Legal Center, How to Make a Condo Complex Smokefree Factsheet, 2008

    [6] Susan Schoenmarklin, Tobacco Control Legal Consortium, Legal Options for Condominium Owners Exposed to Secondhand Smoke (2006).

    [7] Susan Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009 (2009).

    [8] Susan Schoenmarklin, Tobacco Control Legal Consortium, Legal Options for Condominium Owners Exposed to Secondhand Smoke (2006).

     [9] Susan Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings: 2009 (2009)





    Content Last Modified on 9/19/2011 8:49:29 AM