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 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 & 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.