Condo Media - November 2014 - 30

MANAGEMENT
to prohibit smoking anywhere in the
community.
But even though their enforcement authority is limited, boards may still be sued
by owners who are offended or sickened
by secondhand smoke. Boards must respond to those complaints and act within
the limits of their authority to mitigate
the problem: by asking smokers to smoke
outside the building; encouraging them
to install smoke-eaters or other filtration
systems (and perhaps having the association pay some if not all of those costs);
sealing cracks through which smoke is
infiltrating a unit; and possibly proposing
a bylaw amendment prohibiting smoking
in the community.
Even if the mitigation measures
prove inadequate and owners reject
a smoking ban, boards will be able
to demonstrate that they have done
all they could to resolve the problem. That won't prevent suits filed by
nonsmokers, but it will give boards a
reasonable defense against them.

Test Case in Massachusetts

Residents concerned about secondhand smoke can file a suit against
their smoking neighbors. The association can initiate a suit as well,
asking a court to agree that smoking
violates the community's nuisance
provision. We'd welcome a Massachusetts court decision defining
smoking as a nuisance. There is no
question it would make it easier for
boards to deal with smoking complaints. But someone has to spearhead what would be a test case here,
and no community associations have
thus far been willing to undertake
that effort or cover the hefty legal
costs it would entail.
A state law (or municipal ordinances)
prohibiting smoking in multifamily
properties would take the enforcement
problem (happily) out of association
hands. In California, something of a
national bellwether, 55 cities and counties have enacted measures restricting

smoking in apartments and condominiums, 17 of those measures banning
smoking entirely. The Massachusetts
legislature has considered a ban on
smoking in multifamily dwellings, but
that measure, introduced in the past
three legislative sessions, hasn't gotten
very far.
That may change - eventually. Massachusetts and other states may decide
to bar smoking in multifamily housing as they have in office buildings,
restaurants, and other public places.
But that doesn't seem likely to happen
any time soon.
In the meantime, the California case
discussed here hasn't fundamentally
altered the legal backdrop for smoking
complaints in condominium communities and it hasn't altered the advice we
give our association clients: Take those
complaints seriously and do everything
you can to address them.
The California decision did raise an
interesting side issue worth noting.
The plaintiffs contended, and the jury
agreed, that the association's failure to
mitigate the secondhand smoke was a
breach of its obligation to ensure owners the "quiet enjoyment" of their unit.
In my opinion, this is an erroneous and
disturbing conclusion.
The obligation of landlords to ensure the "quiet enjoyment" of tenants
in rental properties is well established;
but this theory has not generally been
applied to community associations
and shouldn't be, because they do not
have a landlord-tenant relationship
with owners
However, some judges, like the
California jury, have failed to grasp
that distinction, imposing on boards
the obligations of a landlord. This
reflects a fundamental misunderstanding of the condominium structure and
is inconsistent with it. It's a misunderstanding that condominium attorneys
and other industry professionals must
try to combat. CM
Patrick Brady, Esq., is a partner in the
law ﬁrm of Marcus, Errico, Emmer &
Brooks, P.C.

Condo Media * November 2014

Condo Media - November 2014

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