Page 5 - Chicago Fall Cooperator 2020

CHICAGOCOOPERATOR.COM THE CHICAGOLAND COOPERATOR — FALL 2020 5 QUESTIONS & ANSWERS Legal Q A& Neighbor’s Secondhand Smoke Q I live in a condo and my neighbor downstairs from me is constantly smoking. I brought it to the atten- tion of management and nothing has been done. What are my options as an owner: do I bring legal action against the management or do I take legal action against the neigh- bor where the cigarette smoke is coming from? —Keep Your Smoking Away from Me A “Your issue involves conduct by a condominium unit owner within his/her own unit,” says James Arrigo, an attorney at Rathje & Wood- ward, LLC in Wheaton. “Th ough many states (including Illinois, where I practice) have laws restricting smoking in public places and at work, these generally do not prohibit individ- uals from smoking in their own residences. You do not mention whether you have spoken to your downstairs neighbor about this prob- lem in an attempt to resolve the problem. Of- ten a simple conversation can avoid attorney ing any power to enact restrictions on his/her enants is likely necessary. Such amendments fees and litigation. If you have exhausted this own—the manager could only help enforce are prepared by the board or the association’s avenue, you may have options for legal action restrictions that the association has adopted. attorney and must be approved as the cove- against your neighbor. Th e two most com- mon theories of recovery are nuisance and target for direct legal action. Instead, your best will likely require approval by at least a major- breach of contract for acting contrary to your course may be to encourage the board to en- association’s declaration, depending upon the act smoking restrictions, and then to enforce of up to 75% of the unit owners. Amendments language in those covenants. If you are look- ing for immediate relief from the smoke, you fall primarily into two categories: rules/regu- would typically need to seek an injunction, for lations, and amendments to the covenants. which you would need to show irreparable harm that can’t be adequately addressed by and regulations which restrict or prohibit decline to approve an amendment imposing monetary damages. Such cases can be costly, smoking in association common elements such restrictions. not to mention create tension and hard feel- ings among neighbors, and you may not be with only board approval (aft er the necessary age of owners approve an amendment to able to recoup your legal expenses even if you notice to association members). Th e board ban smoking in the units, courts have dem- eventually win. “If, as your question suggests, your condo- minium association does not have restrictions keep their smoke from fi ltering through to the to smoke when they bought their condomini- on smoking, its board may have a limited hallways or adjacent areas through means like ums. On the downside, if fellow unit owners ability to take action against your smoking installing air fi lters or ‘smoke eaters.’ Th e eff ec- neighbor. Th e association’s ability to help will tiveness of such equipment may also depend limited recourse aside from a private right of be largely dictated by the specifi c language of upon whether multiple units share a heating/ your declaration related to nuisances. Because cooling system. the association’s manager typically is an em- ployee or agent of the association who takes ing inside individual owners’ units (which are direction from the board—rather than hav- Th e manager is therefore unlikely to be a good nants provide. At a minimum, an amendment them against your neighbor. Such restrictions must also be recorded against all of the units “Condominiums can typically adopt rules pletely ban smoking in the units if the owners such as hallways, entryways, and stairwells may also be able to impose restrictions that onstrated a willingness to enforce them even require smoking unit owners to take steps to against owners who counted on being allowed “But to impose an outright ban on smok- private property), an amendment to the cov- ity of the board and the affi rmative approval to become eff ective. Neither the board nor the manager is likely to have the power to com- “On the upside, if the requisite percent- reject an amendment, non-smokers may have action for breach of contract and/or nuisance. “Additional issues may arise in the event the ‘smoking’ at issue involves cannabis/mari- NEED ANY MAINTENANCE PAINTING? NEED ANY MAINTENANCE PAINTING? 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