Real Estate Matters: Where there’s smoke, there’s a conversation about association rules
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.)