Real Estate Matters: Interpretation of condo board rule goes up in smoke
Q: I live in a condo with four smokers living below me. They continually blow smoke out the windows and it rises and enters my unit. Our revised rules and regulations state that no smoke is allowed to migrate to another unit. What can I do when the president of the board advises me that it is my problem and I have to keep my windows shut?
A: Good question. We recently wrote an answer to a similar question that looked at what happens when a home owners association board passes a rule regarding smoking. In your situation, the board has already passed a rule regarding smoking. You mention that the rule prohibits smoke from migrating from one unit to another. Well, as with many rules, the sticking point is in the interpretation of the rule.
You can have noise, smoke and smell issues between units. Frequently, the noise flows from one unit to the other through the floors or walls. The same can be said for smoke and smells. Sam remembers one case he dealt with where the smoke seemed to come through the electrical outlets between units. There was so much smoke coming from the next-door unit that the smoke would force its way out of the unit through the electrical outlets.
You're experiencing smoke coming into your unit through your window. We suspect that if someone was smoking outside of your unit but not in your building, you'd have the same problem. Your condominium association has an obligation to manage the building, pass rules and enforce those rules.
However, the condominium association did not ban smoking in an owner's unit. That smoke has to go somewhere, and the association passed a rule that says that smoke from one unit can't migrate to another unit in the building. The board is taking a narrow interpretation of that rule as the smoke does not appear to be migrated from within the building to adjacent units but rather leaving the building and reentering through your open window.
We suspect that if the building passed a rule forcing the unit owners to keep their windows shut, the smoke would migrate to the hallway and into other units. The owners that smoke in the unit below yours may be doing everything that they can to keep the smoke from migrating between units by pushing the smoke out of their unit through the window. The association must think that is reasonable and complies with the building regulations.
It's going to be hard for you to fight the association on that one issue unless there is a statute or ordinance where you live that goes beyond your association rules and forces the unit owners that smoke to do something different.
And, it would seem that the only way the association can eliminate the smoke issue is by banning smoking. They have chosen not to do that, so you may either have to petition the building to ban smoking or petition them to amend the rule to include smoke that comes from balconies, windows and the like.
At this point, you might want to see what you can do from your end. It seems that you might have negative air pressure in your unit that draws air in. If you have other windows in your unit, you might want to experiment and see if a combination causes the air to flow out of the window that is drawing the smoke in.
The ultimate solution for you will be to have an association board that is willing to view the rule more expansively or to amend it to include your problem. However, for that you'll need to elect in board members more sympathetic to your issue. Good luck.
(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.)(c) 2020 ILYCE R. GLINK AND SAMUEL J. TAMKIN. DISTRIBUTED BY TRIBUNECONTENT AGENCY, LLC.