In the ongoing effort to limit the non-smoking public's exposure to second-hand cigarette smoke, municipal governments across the country are coming up with increasingly strict bans on smoking in public places—even on public streets and in parks in some communities. Perhaps not surprisingly, more and more condominium associations are following suit.
“I have worked with a number of associations to change the recorded covenants by unit owner approval to prohibit smoking on the property or most anywhere on the property,” says Arlington Heights–based attorney Charles T. VanderVennet, P.C. “Two associations I represent have put declaration amendments in place to ban smoking. One from the entire property and one from anywhere but on balconies—the terms of that association’s declaration would not allow the amendment to prohibit smoking on the balconies without also obtaining lender approval—a requirement that might not have been attainable.”
The surge of aversion to smoking in residential buildings is largely a reflection of changing attitudes toward cigarettes. About 20 percent of the population nationwide consider themselves smokers, and growing numbers of non-smokers are concerned about the health hazards of exposure to second-hand smoke. A 2006 Surgeon General’s report concluded that “there is no risk-free level of exposure to second-hand smoke.”
According to Lakeside Community Development Corporation, a non-profit housing and community development organization in Chicago, “Research shows 35%-65% of the air in any given unit is shared air from other units and common areas in most multifamily properties. That means residents living in buildings with smokers face heightened health risks, including heart attacks, stroke and lung cancer. Babies and children are more susceptible to secondhand smoke and are at a higher risk of SIDS, asthma attacks, ear infections and pneumonia.”
The Smoke Free Illinois Act went into effect on January 1, 2008 and bans smoking in most buildings and vehicles used by the general public. It also requires “no-smoking” signs, bans smoking within 15 feet of openings in targeted buildings and requires at least 75 percent of rooms in hotels to be designated non-smoking. A person who smokes in a prohibited area could be fined anywhere from $100 to $250.
Given the groundswell of opposition to smoking in most communities, real estate insiders and legal experts point out that it is possible to prohibit smoking throughout a condo property—even within each unit—but to do so requires a change in the building or HOA's bylaws.
One association incorporated their own smoking ban that included living units as well as common areas. In 2010, 1418 North Lake Shore Drive, a luxury 28-unit high-rise, became Illinois’ first smoke free condominium after residents overwhelmingly voted to ban cigarette, cigar, pipe or any other smoking on the property.
“When I came in as property manager [at 1418 North Lake Shore Drive] three years ago the board was starting the process of figuring out what they had to do to turn the residence into a smoke-free building,” says Paulette Rodriguez of DK Condo, a property management company in Chicago. “The idea to amend the smoking bylaws came from the residents and the management company. It was a joint effort and commitment. The residents wanted to create a healthier environment, and as a broker and property manager I can tell you that no-smoking policies reduce cleaning and painting chores.”
Under the condominium’s bylaws, at least two-thirds of the owners had to vote in favor of adding the smoking ban amendment to the condominium declaration. Of the 28 owners, only two voted against the amendment. “Each unit is a full floor, and there was only one smoker in the building,” says Rodriguez. “He had already incorporated a room that he had vented out to the outside which allowed the smoke to go out—the filtering system routed the smoke right out the back of the building. So the smoking ban didn’t apply to him, he was grandfathered in.”
The luxury high-rise on Chicago’s gold coast received accolades from The Chicago Respiratory Society, who presented the association with an award for going smoke-free. “I’ve had presidents and managers of other condo units call me and ask ‘How’d you do it?’ ” says Rodriguez. “The difficulty is getting the right percentage of votes when you have a large building. The attorney we had was great and guided us through the process of what we needed to do.”
Impact on Market Value?
Some condominium owners and developers worry that a smoking ban could diminish the number of prospective buyers for their units while there are owners that view a no-smoking restriction as an enhancement of the property.
“I have nothing against smokers, but as a property manager and real estate broker, I have seen what smoking can do to a unit,” says Rodriguez. “There are a lot of things in our environment that we didn’t have years and years ago, and that alone is hard for people with allergies—but when you compound that with smoke, it’s even harder. I have clients who won’t move into a unit where there was a smoker. Smoke gets into the walls, it can get into the floor, especially if there is carpet, sometimes you have to remove the carpet because the smell can linger. It’s not impossible to get smoke remnants out, but it’s a lengthy process. If someone walks in and they smell smoke it can be a turnoff.”
Real estate experts agree that developers' main interest is naturally to sell units, so they are less likely to impose restrictions that might possibly prevent them from getting a unit sold. Consequently, smokers and non-smokers living side-by-side in harmony can be a difficult balancing act. “I have found that many owners and residents on either side of the issue value the ability to smoke in their units, or the ability to be free from smoke penetration into their units,” says VanderVennet. “New development has slowed considerably. I am not aware of any push by developers to market smoke-free condominiums.”
Up in Smoke
As smoking bans become increasingly common, many smokers are finding that the last place they can puff away freely is at home. Perhaps not for long if home is a condominium.
In January 2012, Illinois State Rep. Sara Feigenholtz (D-12, Chicago) introduced legislation to give Illinois condominium associations the authority to restrict smoking in private units of multifamily buildings.
“Our district office receives many calls from constituents who suffer from health issues and are affected by secondary smoke in their building that is in common areas, hallways or coming through vents,” says Feigenholtz of her reason to introduce the controversial no-smoking legislation. “After careful examination of the Indoor Clean Air Act, our legal staff discovered that all condominium associations already have the right to ban smoking in their common areas. With self-governance already in place and frankly an easier route, state law can be changed, but it would be a heavy lift to get it passed.”
“Recent activity in the Illinois legislature considered a statutory change to insert explicit authorization for a condominium association’s bylaws to include restrictions prohibiting smoking in the units,” says VanderVennet. “Such authority in the law would strengthen the position allowing the unit owners to impose such a restriction on how the unit can be used. The bill was sent back to committee and may resurface in the future.”
The battle between smoking and non-smoking condominium residents aren’t new, but as complaints about second hand smoke increase and the evidence of its dangers prove more damning some conflicts are now being hashed out in court, with the courts being more inclined to weigh to the rights of homeowners to breathe in clean air in their homes, but courts do not easily or happily restrict private property rights.
For managers of multi-unit buildings, smoking has always been a headache - but complaints in recent years have increased. “People complaining that they smell smoke is nothing new,” says Rodriguez, “But it has been more of a problem in the past five years. I think most buildings don’t allow smoking in common areas and restaurants don’t allow smoking at all, unless there is a designated area for smoking.”
“The rise of secondhand smoke concerns and considerations of full or partial smoking bans has been a relatively recent occurrence,” adds VanderVennet. “Those topics gained some traction as various states and/or communities banned smoking in public places. A number of unit owners have commented about the irony that someone working or dining in a restaurant was afforded more protection from secondhand smoke than he or she was given relative to the time where he or she was sitting or sleeping in his or her unit within a condominium building.”
Transforming a multifamily building into a non-smoking environment might seem like a daunting task, but there is help out there. Lakeside Community Development Corporation provides education on how to make buildings smoke-free through webinars, workshops and one-on-one technical assistance. Visit www.lakesidecdc.org or contact Julio Soriano, a Lakeside community associations specialist, at (773) 381-5253 x103, for more information on how to make your building smoke-free.
Marie Auger is a Massachusetts-based freelance writer. Staff writer Christy Smith-Sloman contributed to this article.