Legal Q&A Secondhand Smoke, Repurposing Common Space, & Dealing With Hoarding

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 attention 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 neighbor where the cigarette smoking 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 & Woodward, LLC in Wheaton. “Though many states (including Illinois, where I practice) have laws restricting smoking in public places and at work, these generally do not prohibit individuals from smoking in their own residences. You do not mention whether you have spoken to your downstairs neighbor about this problem in an attempt to resolve the problem. Often a simple conversation can avoid attorney fees and litigation. If you have exhausted this avenue, you may have options for legal action against your neighbor. The two most common theories of recovery are nuisance and breach of contract for acting contrary to your association’s declaration, depending upon the language in those covenants. If you are looking for immediate relief from the smoke, you would typically need to seek an injunction, for which you would need to show irreparable harm that can’t be adequately addressed by monetary damages. Such cases can be costly, not to mention create tension and hard feelings among neighbors, and you may not be able to recoup your legal expenses even if you eventually win.

“If, as your question suggests, your condominium association does not have restrictions on smoking, its board may have a limited ability to take action against your smoking neighbor. The association’s ability to help will be largely dictated by the specific language of your declaration related to nuisances. Because the association’s manager typically is an employee or agent of the association who takes direction from the board—rather than having any power to enact restrictions on his/her own—the manager could only help enforce restrictions that the association has adopted. The manager is therefore unlikely to be a good target for direct legal action. Instead, your best course may be to encourage the board to enact smoking restrictions, and then to enforce them against your neighbor. Such restrictions fall primarily into two categories: rules/regulations, and amendments to the covenants. 

“Condominiums can typically adopt rules and regulations which restrict or prohibit smoking in association common elements such as hallways, entryways, and stairwells with only board approval (after the necessary notice to association members). The board may also be able to impose restrictions that require smoking unit owners to take steps to keep their smoke from filtering through to the hallways or adjacent areas through means like installing air filters or “smoke eaters.” The effectiveness of such equipment may also depend upon whether multiple units share a heating/cooling system. 

“But to impose an outright ban on smoking inside individual owners’ units (which are private property), an amendment to the covenants is likely necessary. Such amendments are prepared by the board or the association’s attorney and must be approved as the covenants provide. At a minimum, an amendment will likely require approval by at least a majority of the board and the affirmative approval of up to 75% of the unit owners. Amendments must also be recorded against all of the units to become effective. Neither the board nor the manager is likely to have the power to completely ban smoking in the units if the owners decline to approve an amendment imposing such restrictions. 

“On the upside, if the requisite percentage of owners approve an amendment to ban smoking in the units, courts have demonstrated a willingness to enforce them even against owners who counted on being allowed to smoke when they bought their condominiums. On the downside, if fellow unit owners reject an amendment, non-smokers may have limited recourse aside from a private right of action for breach of contract and/or nuisance. 

“Additional issues may arise in the event the ‘smoking’ at issue involves cannabis/marijuana and, if so, whether its use is medical or recreational. Currently, federal law, including the Fair Housing Act, affords no protection, because marijuana use is not legal under federal law. However, some states’ laws prohibit discrimination against tenants/occupants who are permitted or ‘card-holding’ medical marijuana users. We recommend consulting with an attorney in the event your association is considering action to ban or restrict any type of smoking.”

Repurposing Common Space Without Owner Approval

Q. My condo board, against the rules that require a vote to change the use of common property, is now using our paddle board court to store large equipment like pressure washers, etc. I asked about it at the annual meeting and they told me to ask the site manager to move the equipment whenever I want to use the court. This to me is unacceptable since the property involved has still changed its primary use and of course the property manager does not work 24/7 and other ethical reasons. Also the overall beauty of the area is compromised. Can I sue and force the association to buy back my property for what I paid for it and possibly include the cost of improvements I made, and even add in an index of how much property values in the area have increased since my purchase? I need help here. I am not being treated the same as other residents. Thank you.

—Peeved Owner 

A. “The owner is raising two distinct issues here,” says attorney Nicholas Bartzen of the Chicago-based firm of Levenfeld Pearlstein, LLC. “First, what is the board’s authority to alter or repurpose common element space without the ownership approval? Second, can he/she sue the association for the alleged drop in property values resulting from the alteration?

“First, in Illinois, the board has broad authority to alter or repurpose the common elements. The board’s authority to oversee the common elements is governed by the declaration and the Illinois Condominium Property Act (“Act”), the latter of which, at Section 18.4(a), states that the board has the power and duty to “provide for operation, care, upkeep, maintenance, replacement and improvement of the common elements.” Since the paddle board courts are now being used for storage, the board could take the position that it is “replacing” them by changing their primary use to storage from recreation and thus acting under its rights under the Act. Therefore, under Illinois statute, the board has the power to repurpose the use of common elements without unit owner approval, especially because this particular repurposing is not costing any money—it leaves the ownership little recourse save for getting new board members elected to change the association’s storage practices.

“Now, just to be clear, the fact that the board can use the paddle board court for storage without unit owner approval doesn’t mean that the board could decide to build, say, a water park in place of the paddle board court, since most declarations limit the board’s ability to spend money for capital improvements. Further, the Act states that if the cost of the water park exceeded 5% of the annual budget, the unit owners would have the option of vetoing the board decision via unit owner meeting and majority vote to reject it.

“Again, here, since there is likely no money being spent, there is little that the unit owners can do to overturn the board’s decision.

“Second, the unit owner can always attempt to file an action against the association, but I doubt very much that the association could be compelled to buy back the property, since the Act requires 2/3 unit owner approval for the board to buy or sell any property on behalf of the association. Moreover, even if the unit owner proved that there has been a diminution in his/her property values compared to other area properties, proving that the diminution is directly attributable to the board’s choice to repurpose the paddle board courts would be a tough sell.”  

Hoarding Problem

Q. Please help me. I live in a condo. My next door neighbor is a hoarder. She constantly leaves the front door open. I complained to the buildings department many times. The smell is awful; she has mice, roaches, and water bugs. What can I do?

—Desperate Tenant

A. Says attorney David Savitt of Kovitz Shifrin Nesbit, which has offices in Illinois, Indiana, and Wisconsin:

"As a general principle, owners are required under the governing documents of their association to keep their units in good, habitable condition. Because hoarding can put others’ health and safety at risk, boards have a myriad of options to address the hoarding. Residents should bring their concerns to their board as soon as possible so the board can determine how best to address the situation. Specifically, the board may, with the consent of the hoarding owner, access the unit to conduct an inspection and determine the extent of damage and work that may be required (i.e., electrical, plumbing, cleaning, extermination, etc.) to return the unit to a habitable condition. Depending on the severity of the hoarding, the board may elect to levy reasonable fines against the owner to encourage prompt cleaning of the unit. Additionally, the board should consult the governing documents of the association to determine whether costs incurred by the association to clean/repair the unit can be charged back to the hoarding owner. If the hoarding owner is cooperative, the board can handle this situation internally; however, circumstances may warrant obtaining a court order to compel access to the unit and compliance with the board’s demands."

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