MOMENTUM GATHERS FOR SMOKING BANS. TWO ATTORNEYS TELL HOW TO IMPLEMENT.

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Some communities include a "grandfather" provision exempting current owners from the smoking ban; others go "cold turkey," prohibiting smoking immediately and with no exceptions, while some wind up in between, grandfathering current residents for a limited period to give them time either to adjust to the policy or move.

We have found that a grandfather provision can make it easier to win owner approval. We also think grandfathering makes it less likely a smoking ban will be challenged , and easier to defend if it is. Banthin says he's seen both approaches — with and without a grandfather provision ― work in different communities, depending in part on the number of current smokers and the number of owners who feel strongly about eliminating second-hand smoke.

Boards obviously should get a clear sense of how owners feel about a ban before deciding how or if to proceed with one. And they should gauge not only how owners feel about the ban but the intensity of the feelings on both sides.

A couple of additional points about the grandfather provision. It should apply to the owners or residents occupying the units, not to the units themselves. When current residents move, future residents must abide by the ban. The provision should also address tenants who are renting units as well as owners who are occupying them. The co-op- / condo boards can require investor owners to begin imposing the no-smoking rule on tenants when an existing lease or rental agreement ends, or when a new tenant replaces existing ones.

Enforcement and Discretion

Condo / co-op boards that enact smoking bans have to consider how to enforce them. We strongly encourage associations to include a provision specifying that:

• While the board may enforce the policy, it is not required to do so; and

• Owners have the authority to pursue complaints on their own, by filing suit, if necessary, against owners who are violating the covenant.

This language makes enforcement of the smoking ban an option, not an obligation. Boards are not required to address every violation, large or small; they have the discretion to determine whether and how to enforce association rules. Those decisions can't be arbitrary or capricious; they must be fair and reasonable, reflecting efforts to act in what board members believe to be the community's best interests, as required by the Business Judgment Rule.

Within that framework, boards don't have to respond equally to every smoking complaint. They can and should distinguish between the complaint of a pregnant owner concerned about the health impact of second-hand smoke, and the complaint of the owner who says, "I think I smelled smoke last night and I'm pretty sure it was coming from the owner down the hall, and this has nothing to do with the fact that I've been fighting with this owner about just about everything for the past 10 years."

Boards can decide to pursue some complaints while deciding that they don't have sufficient evidence or sufficient resources to pursue others. The language above clarifies both the board's discretion and the right of owners individually to enforce the smoking ban. It also specifically prohibits anyone from recovering legal fees or other costs from the board because of its failure to enforce the ban.

Future Trends

Many city and state governments have barred smoking in offices, restaurants and other public places, and it is possible they may eventually bar smoking in multi-family residences, as well, relieving landlords and community associations of the need to do so. A few city and county governments (most of them in California) have already taken that step. (See sidebar.)

It is also possible that insurance companies might be persuaded to offer premium reductions on co-ops / condos that adopt no-smoking policies, because of the reduced fire risks.

While changes in insurance policies and government regulation may come eventually, Banthin anticipates a more immediate trend: Fair Housing Act complaints filed by non-smokers, seeking accommodations (in the form of smoking bans) based on the adverse health impacts of second-hand smoke. "That's going to be a powerful concern for condominium associations," he predicts, and another strong argument to adopt smoking bans.

Those proposals "won't sell themselves," Banthin emphasizes. Boards will have to sell the idea to owners, first by educating themselves about the advantages of a ban, and then by educating owners.

It won't be enough just to explain the arguments in favor of a ban, Banthin advises boards. "You will have to make owners care enough about the issue to vote," he says, and persuade them that the ban is in the long term interests of the community and its residents.

Stephen M. Marcus (top) and V. Douglas Errico, partners at the nearly 20-year-old firm Marcus, Errico, Emmer & Brooks, are nationally known authorities and lecturers on condominium and community association law. This is adapted from their article on the firm's website.

Illustration by Dave Bamundo 

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