Can an association prohibit or otherwise restrict smoking in the common areas or common elements? This is not a question one would typically hear for homeowners associations. Simply put, single family homes in planned developments typically have open air common spaces where smoking is not an issue. But, in condominiums or townhome developments, smoking can be an issue. Many condominium developments are constructed with shared air ducts and walls. Smoke can freely pass through such ducts or walls, or under doors in condominium common areas. Given the well-documented health effects of second-hand smoke and the governmental regulation of smoking in other public spaces, can a condominium development prohibit or otherwise restrict smoking in its common areas or common elements?
Of course, Tennessee has not addressed this issue. But other states have. A California jury found a condominium association negligent for failing to resolve a second-hand smoke dispute between neighbors. The verdict awarded the Unit Owners over $15,000.00 in damages. California courts have held in Birke v. Oakwood Worldwide, that the owners of an apartment complex owed residents a duty to keep the premises “reasonably safe” and that the failure to adopt a no-smoking policy for outdoor common areas could constitute a breach of that duty. In Colorado, a District Court upheld an amendment to a declaration that banned smoking in a condominium development entirely. These cases show that an association may (and in some cases must) prohibit or regulate smoking in the common areas and common elements of a condominium development.
Based upon these cases, the law is headed towards creating some liability for associations that fail to recognize that second-hand smoke has health effects and that such effects can be mitigated by prohibiting or restricting smoking in the development. As noted above, courts are already holding associations liable for not regulating smoke within common areas and are upholding smoking restrictions.
We have already worked with an association in Memphis to pass a no-smoking restriction. Such a restriction does not prohibit all smoking. Rather, it addresses smoking in the common areas and common elements and incidents where smoke seeps or permeates out of a Unit into another Unit or the common areas or common elements.
If you association would like to discuss such an amendment, please let us know.