I get asked this question frequently. With more public and private facilities now smoke-free, and the knowledge of the dangers of even remote second hand smoke widespread, non-smoking owners and board members start to wonder if they can limit or even prohibit smoking within their communities.
Whether a community consists of single family homes, townhomes, condominiums or stacked units, the board of directors can probably adopt rules limiting or prohibiting smoking in common areas and limited common areas such as pools, clubhouses, tennis courts, lobbies, elevators and stair wells, and even on private patios and balconies. Most Declarations of Covenants include language along the lines of “The board of directors may adopt reasonable rules concerning the common areas.” Smokers are not a protected class, and have no special right to smoke in the common areas. Thus, a board is often within its rights to adopt a rule prohibiting smoking completely within the common areas and limited common areas. Many do this to not only address smoke and odor, but also to prevent the accumulation and cleanup of cigarette butts. Some associations choose not to prohibit smoking, but to have designated smoking areas to limit smoke exposure to non-smokers. These rules are generally self-enforced, but fines could issue for violations. What path a board or community chooses to pursue here will depend in large part on the extent to which smoking is viewed as a problem in the neighborhood, and there is no one size fits all.
Prohibiting smoking within individual homes is a trickier issue. North Carolina courts have long held that one’s home is their castle, and are not fond of restrictions on what a person does in the privacy of their own home absent some clear authority in the governing documents. If an association can garner the necessary member support, it may pursue an amendment to prohibit smoking completely. This is more frequently done in condominiums or townhomes, where owners are in close proximity, and less commonly in single family communities. This can be a hard sell, however, and even if the membership is in agreement, might impose a level of restriction on a community that is so far beyond the original scope of regulation as to be unreasonable- and therefore unenforceable- based on current North Carolina case law. Another option is to call back on the familiar but vague nuisance prohibition found in most declarations. Nuisances are generally considered to be obnoxious, offensive or unlawful activities which become an annoyance to other owners, or which endanger the health and safety of owners. Tobacco smoke is not unlawful, but is may be obnoxious or offensive, and it may very well endanger the health of others. But is one cigarette smoked daily enough to cause a nuisance? Ten a week? This calls for subjective determination, and this makes it hard to determine or enforce. We recommend that the nuisance provision be used on a limited basis to address only the most significant situations related to tobacco smoke, and careful consideration be given to how much smoke is being carried off of the property of the smoker, the extent to which reasonable rules can be implemented to address this, and in some circumstances, the particular health concerns of an owner, before any action is taken. If at all possible, an amicable resolution should be pursued, such that neighbors are not pitted against each other. I have seen agreements to limit smoking to certain times of the day, to purchase an air purification system, or not to smoke on a connected balcony. If this does not work, however, the association may have to get involved and consider all options, including amendment or enforcement action under the nuisance provision.
The North Carolina Division of Public Health has published an excellent primer on adoption of smoke free regulations for condominiums, which can be found in this online article, Taking a Condominium Smoke-Free Through Your Community Association: North Carolina Law.
As always, please feel free to contact any of Black, Slaughter & Black, P.A.’s community association attorneys in Charlotte or Greensboro to discuss any questions you may have.