Prohibiting Smoking in Condominium Units

The war on second-hand smoke began in certain public places like elevators and hospitals. Later it moved to restaurants and bars and certain common elements of a condominium project. The latest venue is individual units in condominium projects. Communities like Belmont, California (half way between San Francisco & San Jose) have adopted ordinances prohibiting smoking in individual units and the patio/yard areas of multi-unit residences (apartments, condominiums, and townhouses) which share common floors and/or ceilings with at least one other such unit. Other communities are considering similar legislation.

However, not all attempts to restrict smoking in units are on the legislative front. The State Health Department and the Coalition for a Tobacco Free Hawaii have been urging condominium associations to adopt their own restrictions on smoking in units. As a part of this process, they requested an Attorney General opinion on the legality of condominium associations adopting bylaw amendments to prohibit smoking in units. Not too surprisingly, the Hawaii Attorney General issued an opinion that condominium associations could legally adopt restrictions on smoking in units. This was, in part, based on a Colorado case that upheld an amendment to the bylaws prohibiting smoking in the units.

What was unexpected, however, was that the Attorney General’s opinion also indicated that such a restriction could be adopted by the Board through a house rule. The Attorney General’s opinion was based in part on Hawaii Revised Statutes §514B-105(b) which permits condominium associations to:

Regulate any behavior in or occupancy of a unit which violates the declaration or bylaws or unreasonably interferes with the use and enjoyment of other units or the common elements by other unit owners . . . .

The Attorney General determined that second-hand smoke could unreasonably interfere with the use and enjoyment of other units. Condominium associations should be careful about regulating smoking in units by house rule without first obtaining a legal opinion from their attorney. Despite the Attorney General’s opinion, there are questions whether smoking in units can be prohibited by house rule. At a minimum, there is a risk that condominium associations would be subject to lawsuits by residents who wish to smoke in their units.

If you wish to regulate smoking in units, a safer approach would be by way of a bylaw amendment. A number of condominium associations have already adopted prohibitions or regulations on smoking in units. These include an outright ban on smoking at the Project, prohibitions on smoking on the lanai portions of the units and requiring that any smoking in the unit be contained in the unit.