{"id":44,"date":"2009-10-26T07:11:00","date_gmt":"2009-10-26T11:11:00","guid":{"rendered":"http:\/\/mainecondo.com\/blog\/?p=44"},"modified":"2009-10-26T07:59:09","modified_gmt":"2009-10-26T11:59:09","slug":"44","status":"publish","type":"post","link":"https:\/\/mainecondo.com\/blog\/?p=44","title":{"rendered":"Smoke free policies \u2013 a misleading claim from Smokefreeforme.org"},"content":{"rendered":"
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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.\u00a0 Apparently the Coalition obtained a list of condominium association clerks from the Secretary of State\u2019s office.\u00a0\u00a0 Each letter contained a flyer about making Maine condominiums smoke free.\u00a0 Unfortunately, this flyer is misleading.<\/p>\n

However desirable it may be to make\u00a0Maine condominiums smoke free, it is stretching things to say,\u00a0as the Coalition states in its flyer, that \u201cCondo owners and associations have a legal right to make their units and buildings smoke-free\u201d<\/em><\/strong> .\u00a0\u00a0 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.<\/p>\n

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.\u00a0 However, the Board does not have similar authority over uses within the unit.\u00a0\u00a0\u00a0\u00a0 Any attempt to ban smoking within a unit by an amendment to the declaration or bylaws\u00a0must be based on the effects of that smoke outside the unit \u2013 in common areas or other units.<\/p>\n

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.\u00a0 Rodger and Colleen Sauve, unit owners, sued the association seeking to overturn the amendment.\u00a0 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.\u00a0 That case was a lower court case, not necessarily binding on other courts in Colorado, much less Maine.<\/p>\n

Whether or not smoke meets the legal definition of nuisance under either the condominium documents or under state law depends on the\u00a0circumstances of the particular case.\u00a0 And unless an aggrieved\u00a0unit 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.\u00a0\u00a0\u00a0And 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\u00a0restrictions on uses within a unit cannot be adopted by a two thirds or three quarters vote: it must be unanimous.\u00a0 For those who are interested in the exact language, see Section 1602-117 (d) of the Maine Condominium Act.<\/p>\n

Maybe the Legislature or the courts will give condominium associations the right to prohibit\u00a0unit owners from smoking within their unit, based on the theory that second hand smoke is dangerous and will inevitably affect neighbors.\u00a0\u00a0\u00a0But there is no precedent yet in Maine for this proposition.<\/p><\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 Apparently the Coalition obtained a list of condominium association clerks from the Secretary of State\u2019s office.\u00a0\u00a0 Each letter contained a flyer about making Maine […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-44","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/44","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=44"}],"version-history":[{"count":2,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/44\/revisions"}],"predecessor-version":[{"id":45,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/44\/revisions\/45"}],"wp:attachment":[{"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=44"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=44"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mainecondo.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=44"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}