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.
It would seem like if a condominium board of directors can restrict an owner from having a dog or cat in their units and on the grounds they certainly should be within their rights to restrict smoking in individual units. The poor is certainly there. Smoking and second hand smoke is dangerous to everyone’s health. Smoking in condominiums needs to be eliminated. Now if a person lives in a single family detached house that might be a different story. More power to the condominium in placing severe restrictions. Clear the air on this!!!!
Comment by David Lane — October 26, 2009 @ 3:05 pm
Hello David, and thanks for you comment. I expected that the folks from smokefreeforme would take issue. I don’t necessarily disagree with your sentiments; only your conclusion about the state of the law in Maine. It is true that many condominiums restrict animals on the premises because of their use of the common elements to do their thing, and perhaps because barking, even inside the unit, can cause annoyance. These restrictions generally are written into the original declaration or bylaws; it is very unusual to see amendments to those documents which purport to prohibit animals. The cases I have heard about where they did had a “grandfathering” provision; existing dogs are not thrown out but replacements are prohibited.
It is much more problematic for a single unit owner to be able to stop the owner of another unit from smoking in their own unit, in the absence of action by the Association. I know that, theoretically, there is the legal remedy of nuisance, but I have seen no cases in Maine (and I have looked) where a court has stopped a unit owner from smoking in his unit. The issue is being actively discussed in the condominium community, and it is possible, even likely, that your position will be a legal trend. But your organization misstates the facts when it says that the legal remedies exist now.
Cordially, Joe Carleton
Comment by Joe — October 26, 2009 @ 4:34 pm
Hi Most people do not smoke in our 30 unit association. Except next door to me is a very heavy smoker whose significant other does not allow it in the house. 9 months a year smoking prevails on their deck which leaves me unable to have any windows open. Our decks or patios are considered “limited common space”. We are just beginning as a Board to figure out what to do. Since these neigbors moved in between their surrond sound, their cats, their noise and worst the smoke (I have asthma). My asthma seems to have gotten worse in the last 10 years since secondhand smoke is constantly in my home. Any suggestions
Comment by Nina Thomashow — April 3, 2010 @ 5:24 pm
Hi,
Sorry I didn’t notice your post. Controlling smoking in the units is more difficult than smoking in the common areas. The limited common areas are a subset of the common areas and the Board may have the power to control smoking there by rule, if it chooses to do so, because generally the Board has more control over the common areas.
Joe
Comment by Joe — July 2, 2010 @ 3:27 pm