Q. I am a condo unit owner with 54 units in our building. My unit is on the 2nd floor facing south. My neighbor’s 2nd floor unit faces west. We are cornered from each other. She is a smoker and sits on her balcony quite often. I enjoy having my glass balcony door open to let the fresh air in. The problem is the cigarette smoke drifts into my unit. I don’t like the smell and not to mention I end up breathing it into my lungs. I can’t sit out there let alone having to close my door. Can I do something about it? Before she purchased the unit I was able to sit out there and enjoy the fresh air, also being able to open my glass door. Do you have any suggestions? Our condo association documents state that the patio’s and balconies are limited common areas.
—Fed Up with the Smoking
A. “Conflicts between smokers and non-smokers in shared living communities is a common source of friction,” says attorney James Erwin of the Chicago firm Erwin Law LLC. “Just as with noise complaints, resolution of these disputes often must be dealt with on a case-by-case basis. Unless your association amends its Declarations to ban smoking completely, your neighbor is in her right to smoke within the confines of her unit. That does not mean, however, that she may necessarily do so to the detriment of her neighbors. Virtually all declarations contain provisions which prohibit conduct which is deemed a nuisance or which may be considered noxious or offensive. The association’s board can fine an owner if the directors determine that the smoke transmission emanating from the unit is more of a nuisance than it would be reasonable for one to expect to have to tolerate. Of course, those terms can be subjective and may or may not be considered as applicable to the natural course of cigarette smoke from a unit into the surrounding air outside that unit. However, these provisions can be used to require a unit owner to make reasonable attempts to mitigate the effect of their smoking on others. Such mitigation efforts might include the installation of special smoke exhaust systems or purifiers. They might also extend, in certain instances, to restricting smoking to certain areas of the unit so as to avoid emanation from particular windows. To properly address your concerns, first familiarize yourself with the relevant provisions in your declarations and, if applicable, rules and regulations. Bring your concerns to the board. If there are other owners affected similarly, perhaps your association may wish to go so far as to amend its declarations to completely ban smoking within the association.”