This morning I received a large number of identical letters from the Smoke-Free Housing Coalition of Maine, each sent to me as the registered agent of a condominium association I represent. Apparently the Coalition obtained a list of condominium association clerks from the Secretary of State’s office. Each letter contained a flyer about making Maine condominiums smoke free. Unfortunately, this flyer is misleading.
However desirable it may be to make Maine condominiums smoke free, it is stretching things to say, as the Coalition states in its flyer, that “Condo owners and associations have a legal right to make their units and buildings smoke-free” . The likelihood that an individual unit owner would succeed in getting a court order prohibiting another unit owner from smoking in their unit is slim, and the ability of a condominium association to amend its documents to prohibit smoking in units has not been established by case law or statute in Maine.
The Board of Directors of a Maine condominium does have control over the common elements of a condominium, and they have plenty of authority to ban smoking in the common elements if they want to do so. However, the Board does not have similar authority over uses within the unit. Any attempt to ban smoking within a unit by an amendment to the declaration or bylaws must be based on the effects of that smoke outside the unit – in common areas or other units.
The most commented on case involving this issue comes from Golden Colorado, where the Heritage Hills #1 Condominium Association approved an amendment to its governing documents prohibiting smoking on the property, including within the units themselves. Rodger and Colleen Sauve, unit owners, sued the association seeking to overturn the amendment. A local court upheld the restriction, saying that secondhand smoke or its odor, which wafted into other units and the common areas, was a nuisance under the condominium documents. That case was a lower court case, not necessarily binding on other courts in Colorado, much less Maine.
Whether or not smoke meets the legal definition of nuisance under either the condominium documents or under state law depends on the circumstances of the particular case. And unless an aggrieved unit owner can get other owners to pass an amendment to the condominium declaration or bylaws prohibiting smoking within the units, they will have a difficult time getting relief. And if the amendment is not adopted unanimously by all unit owners, it is not a sure bet that such an amendment would be legal, since the condominium act says that restrictions on uses within a unit cannot be adopted by a two thirds or three quarters vote: it must be unanimous. For those who are interested in the exact language, see Section 1602-117 (d) of the Maine Condominium Act.
Maybe the Legislature or the courts will give condominium associations the right to prohibit unit owners from smoking within their unit, based on the theory that second hand smoke is dangerous and will inevitably affect neighbors. But there is no precedent yet in Maine for this proposition.