Smoking is a controversial issue within homeowners’ associations. Members who have owned their units for years proclaim their right to smoke just as they always have, while other owners object to the smell and adverse health effects. Because of the universally-recognized health hazards of second and third-hand smoke, associations across the country have begun regulating smoking in common areas as well as within individual units. While smoking is not a right protected by federal law or the Constitution, the ability of homeowners’ associations to regulate and prohibit smoking depends on both the applicable state law and the associations’ governing documents.
In Colorado, associations are subject to the Colorado Clean Indoor Air Act, which prohibits smoking in indoor common areas, including restrooms, lobbies, hallways, and other common areas in private buildings and condominiums. Its prohibition does not extend to individual units. In order to accomplish a ban on smoking in individual residences, associations must find authority within their governing documents. Many declarations include anti-nuisance provisions, which may be used to prohibit smoking when it is interfering with a neighboring owner’s enjoyment of their own property. Such nuisances must be considered on a case-by-case basis; smoking that is not bothering anyone cannot be considered a nuisance and therefore cannot be banned as one. Should an association prefer to enact a community-wide ban on smoking within units, it is advised that it amend its declarations to include a specific provision that prohibits smoking. Colorado courts have upheld at least one amendment to an association’s declaration that banned smoking in individual units, and this is therefore the recommended method for regulating smoking within units.
While Minnesota does have a Clean Indoor Air Act, the language of the law does not address common interest communities, and the Minnesota Department of health has interpreted that to mean it does not apply to homeowners’ associations. Still, the Association has the right to regulate the common areas as to matters that affect the health, safety, and welfare of the owners, and regulating or prohibiting smoking in common areas certainly falls under that right. As in Colorado, in order to prohibit smoking inside of the units, associations in Minnesota should amend their declarations to include a specific provision outlawing smoking throughout the association property.
Regardless of where the smoking prohibition occurs, associations often choose to include a legacy clause in the declaration amendment, which allows owners who currently smoke to continue to do so until they no longer own their unit. While such an exception is not legally required, it can be helpful in maintaining community morale, as well as obtaining the agreement of the owners necessary to pass such an amendment.
The attorneys at Smith Jadin Johnson have extensive experience working with homeowners’ associations and common interest communities to address issues like this as they arise. We would love the opportunity to discuss how we can help your HOA continue serve its members for years to come.