Q. Our board wants to update the building’s smoking policy to prohibit electronic cigarettes/vaping for both tobacco and cannabis inside private units and on private balconies, not just in common areas. Can they legally do this? 

                                          —Fact-checking 

A. “Generally, a condominium association can prohibit smoking and vaping in both the common elements and units, with one specific exception,” says Kris Kasten, founding member and attorney at Chicago law firm, Bartzen Rosenlund Kasten LLC.  

“Under the Illinois Condominium Property Act, an association can only prohibit smoking cannabis in units. The association cannot prohibit consumption of cannabis by other methods. Smoking excludes vaping. Accordingly, the condominium association cannot prohibit vaping cannabis in units.

 “The same general rule regarding prohibiting smoking and vaping applies to common interest community associations. However, the Illinois Common Interest Community Association Act does not contain any provision addressing cannabis smoking/consumption similar to that which is found in the Illinois Condominium Property Act. Therefore, a common interest community association (whether subject to the Illinois Common Interest Community Association Act or not) does not have the same limitations as a condominium association when it comes to prohibiting the smoking and vaping of cannabis within units.

 “Residential housing cooperatives also may generally prohibit smoking and vaping in both the common areas and units/apartments. There is no statutory scheme applicable to all housing cooperatives like there is for condominiums. Instead, cooperatives will be subject to the statutory scheme under which it is formed (e.g., as a business corporation or not for profit corporation). There is no statutory provision limiting or restricting a cooperative’s authority to prohibit smoking or vaping cannabis.

 “Regardless of whether the association is a condominium, common interest community, or housing cooperative, the governing documents must be reviewed to make sure there are no provisions therein that affect the ability to restrict or prohibit smoking or vaping cannabis.

 “Additionally, the manner in which any prohibition is implemented is important. Generally, an amendment to the declaration or bylaws ensures the enforceability of the prohibition,” he says. “Rules are subject to provisions of the governing documents and a reasonableness standard, and therefore, are more susceptible to challenge. The association should consult with its attorney to determine the best way to implement the prohibition.

 “In summary, it is legal for an association to prohibit smoking and vaping cannabis, except when the association is a condominium. Condominiums cannot prohibit vaping cannabis within units. Although such prohibition is generally legal, the way it is implemented can impact enforceability. Therefore, the association should consult with its attorney about the best way to put the prohibition in place.”