Q What recourse is there when it involves a condo resident whose heavy smoking has so polluted the building lobby outside his front door that there is a 24/7 stench that greets anyone who arrives from outside? In this case, his door is immediately next to the elevator and his is the only ground floor unit, so anyone--residents or visitors--who come in must endure the smell until they reach their floor. This is a small building with 10 units.

—Smoked Out in Palatine

A Most condominium declarations contain a provision which prohibit noxious or offensive activities or any conduct which constitutes a nuisance to others. Noxious activities are those defined as physically harmful or destructive to human beings,” says Patricia O'Connor, an attorney and partner at the law firm of Levenfeld Pearlstein, LLC in Chicago. “A nuisance is an unreasonable, unwarranted or unlawful use of one’s property that invades the use and enjoyment of the property. The determination of whether conduct is a nuisance is based upon an objective standard. In a condominium situation, the board determines whether a nuisance exists by ascertaining whether the conduct is unreasonable for the average person residing in the particular type of building. The determination of whether a particular activity, including smoking, is a nuisance is within the objective determination of the board.

“The dangers of second hand smoke have been sufficiently established in medical circles for the board to reasonably conclude that it is justified in imposing abatement requirements. To address this situation, the board should seriously consider approving smoking rules requiring smokers to abate smoke transmission. Thereafter, the board may levy a fine if the board concludes that the activity of smoking created a noxious and offensive activity and the individual failed to take steps to abate the smoke transmission in accordance with the smoking rules. The board may approve smoking rules in the same manner it adopts all rules, by majority board approval after calling a meeting of the owners to discuss the proposed rule.”

The following is a draft Smoking Rule regarding smoke transmission:

“Unit Owners are allowed to smoke in their Units; however, if the smoke emanating from a Unit causes a nuisance or annoyance to other Unit Owners, the Board, in its sole discretion, may require the Unit Owner to take one or more of the following steps to minimize the smoke transmission from their Units:

A. Properly and fully seal the Unit;

B. Install an air purifier capable of eliminating smoke including, but not limited to, cigar, cigarette, or pipe smoke;

C. Operate the kitchen and/or bathroom vents when smoking;

D. Confine smoking to rooms of the Unit which do not abut a complaining Unit Owner’s Unit.

Failure to comply with this smoking rule will result in the Board exercising one or more of the remedies to which it is entitled to enforce against a Unit Owner pursuant to the Declaration, Bylaws and Illinois Condominium Property Act.”