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Smoking on Balconies - A Dilemma for Condo Owners

By COMPASS PALM SPRINGS | Stewart Penn

Real Estate Agent with COMPASS DRE# 01339266

July 15, 2009 09:01 AM

The state was the first to ban smoking on trains, planes, buses, public buildings, workplaces, restaurants and bars. Last year, California prohibited smoking in a car when a child is present and now California is reconsidering banning smoking on state beaches and in state parks.

With that thought, I move on to the subject of this post .....

The condo building I live in features large balconies off most of the units. The CC&R's (Covenants, Conditions and Restrictions) allow for barbecues provided certain safety requirements are met. However the CC&R's and R&R's (Rules & Regulations) specifically state that "Smoking is not permitted in any common area. This includes elevators, hallways, lobbies, garages, driveways and recreational areas. Smoking is however permitted on balconies and patios, with due consideration being given by the smoker to his/her neighbors".

Certain residents who are big smokers spend long periods of time of their balconies and the smoke drifts into their neighbors' units causing irritation and unwelcome smells. Despite requests for consideration of their neighbors these residents continue to smoke unabated.

The Board is now proposing a complete ban on smoking in all common areas including balconies and patios since these are Common Areas as defined by the CC&R's.

I know the next Board Meeting will have a very vocal "Owners Forum" during which time this topic will be discussed. I understand that owners are entitled to enjoy the privacy of their homes, but at what point is it reasonable to dictate what they can and cannot do in their own condos?

I am not a smoker and don't enjoy second-hand smoke either .... but I'm trying to rationalize this in my mind.

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Thom Abbott

MyMidtownMojo.com |770.713.1505 | Intown Atlanta GA Condo Living - Atlanta, GA

Midtown Atlanta GA Condos For Sale

Stewart....have not looked for the updated blog, but I will post a comment here.

When we condo dwellers sign on, we hardly every REALLY read the condo docs for which we can be held accountable to for many, many things we never dreamed that someone could "rule" on.

While the balconies ARE a limited common element, I think it's going a bit far to say you can't smoke on your balcony. That said, a chain-type smoker who's smoke bothers someone else, well perhaps there is some neighborly thing that can be done to resolve the issue. Oh, wait...we are talking condo living...neighborly...same sentence...hmmmm....

Our issue lies not with the smoke, but the butts....and butts and butts....we have units on lower floors tha that have huge terraces that are littered with butts from the balconies above....people smoke and rather than use an ash tray (which is one really foul smelling thing) they pitch them over the balcony.

2 years ago we had two fires started in the tress on the building from this very thing! Can we say STUPID!

I don't like cig smoke at all, but I'd hate to be so limited as to not be able to smoke on my balcony as well.

Jul 30, 2009 06:03 AM

Douglas Fischer

East Oahu Realty - Selling Honolulu, Hawaii Condos - Honolulu, HI

The laws are just as strict, if not more so, in Hawaii. There's hardly a place that people can smoke in public. Since I'm a non-smoker, of course, that's great. However, my partner smokes and since smoking is not allowed in our home, it can be tough. Perhaps it's time to quit smoking !! ; )

Aug 25, 2009 07:06 AM

Anonymous

Bill Zimmerman

A condo legally, is not a single family home, and the individual rights of a condo owner simply do not exist as with a single family home. If someone wants to use their property as, and have the rights of a single family home owner, I suggest they purchase a single family home.

Here's an excerpt from our CC&R’s circa 1989, Washington State)

“11.10 Offensive Activity - No noxious or offensive activity shall be carried on in an apartment or common area, nor shall anything be done therein which may be or become an annoyance or nuisance to other owners."

Your issue has nothing to do with an individual’s right (to smoke or anything else). It has everything to do with the necessary and normal enjoyment of your property, that clearly trumps the unnecessary (offensive, annoying, or nuisance) activities of any individual. CC&R’s are to be interpreted liberally and always protect the property and the normal enjoyment of the property, rather than any individual behavior. You can’t Blair your stereo (noise pollution), you can’t shine bright lights in someone’s window (light pollution), and you can’t pollute the air that all are forced to share. All of these have been and are considered forms of trespassing.

Other than the interior airspace within the unfinished walls, ceiling and floor of your apartment legally defined as your property, all else is common area, even the dry wall itself is usually considered common area (for its sound and fire control properties), and certainly the airspace within the common or structural walls and floors which the smoke is seeping through is common area. Limited common areas are fractionally owned exactly as any other common area, with the legal distinction that that area is reserved exclusively for the use of an individual unit. You all own a fraction of the balcony or parking stall or area, or wall cavity, or floor cavity, that the smoke is coming from or is getting through, and any owner has the right to limit any activity within any unit, if it can be shown to be an annoyance or nuisance. Any individual right to any activity within your unit ends when the effect of that activity protrudes beyond your unfinished walls, floors or ceilings. Again, these are not freestanding single family residences and can not be consider to be.

I hope my analysis helps everyone better understand the unique situation that is a Condominium Association.

--Bill--

Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association

Aug 27, 2009 08:26 PM

#63

Karen Bernetti

Southington, CT

Great topic. This is a common complaint among unit owners of the condos we manage ... I have one who complains about her neighbors who smoke outside her unit - and her husband is a smoker. She mekes him smoke outside and do the very same thing to their neighbors. Some people just shouldn't live in condos.

Sep 07, 2009 03:34 PM

George Wilson

Lincolnton, NC - Lincolnton, NC

Stewart, Haven't seen the update on the meeting so I'll leave an additional thought that I saw in the news today. With the rise of obesity in America, several states & Congress are planning to place a surcharge tax up to 4% on all foods that use at least 1 oz of surgar in the preparation of food products, not limited to bread, milk, microwave dishes, yogurt, jello, bacon, & other prepackaged foods and they are also looking at controlling alcoholism by charging a surcharge on all products that contain 1% alcohol/volume (most liquid medicines/cough syrups contain this). They had such great results in lowering the number of tobacco products sold that it should work on other health issues that are the result of personal habits & environmental/social issues. I figure that this would come about & since decrease of cigarette sales through taxation worked; the government is looking at other ways to ensure we all have a healthy lifestyle.

Sep 22, 2009 06:05 PM

Marcia Hawken

WILLIAM RAVEIS - Naples, FL

Naples Luxury Specialist

Wow, What a great discussion. What about workers who are doing renovations? Many of them smoke and in Florida the work has to be done in summer when owners are not here. And friends who come for dinner and are smokers. I am a former smoker (like a lot of us) and are told they cannot smoke. I am all for cutting back but I just don't think I want some of the condo associations to run wild!

Oct 20, 2009 10:20 PM

Anonymous

Bill Zimmerman

Regarding the comment about the Condo Association running the world...

You must remember that is your condo association is a non profit corporation. Yes you are all part owners of a corporation and have no individual rights to do anything that would reduce the use or benefit or value of someone else’s share in that corporation (in this case their apartment and common area).

The fact that you used to smoke or that many people in your area do or tolerate smoking doesn’t change this fact.

That, that is beneficial to all has to be protected as indicated in this excerpt from our CC&Rs (Washington State Circa 1989)

"By acceptance of a ...contract for sale, ...or any privileges of use or enjoyment, respecting the property or any apartment..., it is agreed that this Declaration, ...effecting a common plan for the condominium development mutually beneficial to all of the described apartments, ...are binding upon the entire property and upon each such apartment as a parcel of realty, and upon its owners..."

I don’t see anything there or anywhere in our 60+ page CC&R's that guarantees an individuals right to smoke, or another behavior not directly required for the normal use of the property. Smoking simply is not beneficial to all, and can be argued as unnecessary.

Another excerpt relating to "Use of the apartment"
"The buildings and apartments shall be used, for single family residential purposes only, on an ownership, rental or lease basis; and for the common social, recreational or other reasonable uses normally incident to such purposes, and for purposes of operating the Association and managing the condominium."

The question is, while smoking is certainly common and recreational, is it reasonable and having a purpose that is mutually beneficial to all? Any nonsmoker would say no and even a few smokers I’m sure would agree.

Regarding the behavior of friends or guests, they are clearly the responsibility of the owner as specified in your CC&R's.

And the behavior of contractors would be the responsibility of the owner or association depending on whos' behalf the work is being done (common area or owner responsibility items).

I must reiterate regarding this subject, if you want the freedoms that come with a standalone single-family residence and do not want your condo association running your world, I suggest you purchase a standalone single-family residence, which you alone will own and control.

--Bill--

Bill Zimmerman, President
Horizon View Condominiums
Homeowners' Association

Oct 21, 2009 09:14 AM

#67

Steve Merson 512 412 1621

Keller Williams Realty - Austin, TX

CNE, e-PRO

Hi Stewart,

At the risk of perhaps oversimplifying this issue, surely if someone's cigarette smoke is bothering other people then it shouldn't be allowed!

California has certainly lead the way in banning smoking and I'm sure will be the first state to ban it completely. That can only be a good thing!

Steve

Dec 16, 2009 12:04 AM

Ginger Harper

Coldwell Banker Sea Coast Advantage~ Ginger Harper Real Estate Team - Southport, NC

Your Southport~Oak Island Agent~Brunswick County!

This is very much a problem that we also have here along the NC coast.

Jan 19, 2011 06:39 AM

Richard and Jean Murphy

Harborview Properties - Portland, ME

(207) 712-4796

Smoking is invasive. Anyone remember the "cone of Silence"? I recommend the "Cone of Smokers". People should be free to smoke, but not to pollute the air that others breathe. The pendulum is swinging, but not fast enough for the non-smokers.

May 15, 2011 03:06 AM

Dominic Tartaglia

Tartaglia Homes - San Luis Obispo, CA

GRI, SLO first-time homebuyer specialist

Stewart, In San Luis Obispo it is illegal to smoke in ALL public areas and condos and appartments are fair game if the smoke affects other people. I actually have a blog on the subject here http://activerain.com/blogsview/1661053/california-city-makes-it-easier-to-kick-tobacco-use

Jun 08, 2011 09:52 AM

Richard and Jean Murphy

Harborview Properties - Portland, ME

(207) 712-4796

I am in favor of people being free to do what they choose, but smoke travels and is a known harmful element. I say off the decks and patios.

Remember the "cone of silence" from Get Smart? These should be used for smokers who insist on permeating the air of others.

Jan 23, 2012 12:14 AM

Freda Channell

What about grilling on the balcony? It may be legal but the smell of cooking flesh is worse than anything else. How can people oppose one type of smoke over others. If you outlaw smoking outside then common sense tells us that ALL smoking should be outlawed including grilling.

Aug 29, 2012 12:46 PM

Ginger Harper

Coldwell Banker Sea Coast Advantage~ Ginger Harper Real Estate Team - Southport, NC

Your Southport~Oak Island Agent~Brunswick County!

WE have not gotten to this point in NC yet. But I feel it is coming.

Apr 04, 2013 04:51 AM

David Pylyp

RE/MAX Realty Specialists Inc., - Toronto, ON

This is a passionate and timely topic; Our condo building in Toronto Canada has astroturf on the (above grade terrace on the 5th floor BBQ area) Podium section between two towers.

The cigarette butts burning the astroturf are a) fire hazzard b ) will need to be replaced causing additional expense for owners.

How can we regulate this? They do have the right to smoke in their suites, and some are tenants where the Condo has no method of enforcement.

David Pylyp

Toronto

Nov 26, 2013 02:08 AM

ReadySetLoan Team

ReadySetLoan Condo Team LLC - South Windsor, CT

Residential, Commercial & Condo Financing Experts

This is a complex topic because it is infringing on the unit owner's right of "quiet enjoyment" on both sides, the smoker's and the nonsmoker's. One can argue that by buying into a condominium project, the unit owner has to understand and accept that neighbors are in close proximity and if they don't like that, they shouldn't buy a unit.

Jan 18, 2014 01:22 AM

Jon Zolsky, Daytona Beach, FL

Daytona Condo Realty, 386-405-4408 - Daytona Beach, FL

Buy Daytona condos for heavenly good prices

Wow, what an excellent discussion. Reading comments, it is fascinating to see that quite a few agents do not really understand the condo concept. I am glad Bill Zimmerman joined the discussion, as his comments are very helpful here.

Nov 01, 2016 06:25 AM

Henry Mozes

And how about hookah? If I want to smoke it on the balcony?

Jul 13, 2021 08:28 AM

Mary Butar

I think all it depends on situation. Personally I often smoke hookah with my husband, we do this inside the apartment and in the backyard. Maybe you should choose some small model for example from Icon Hookah to provide less smell and smoke.

Aug 11, 2021 08:47 AM

Ali Raz

It is very unsual However i prefer to smoke hookah inside the apartment not in the balcony's and use the small hookah which produces less smoke so Thats why I purchased a compactible hookah from Coals n Bowls and it releases less smoke.

Sep 08, 2021 09:58 PM