While the exhortation to “smoke ‘em if you got ‘em” has never really gone out of style, one should take caution before lighting up just anywhere. Many places, from restaurants to airplanes to hospitals, expressly and strictly forbid anyone from smoking anything at all. And while those nonsmoking spaces are fairly cut-and-dry, the rules are less uniform and absolute in condominium and cooperative residential properties. Some properties allow smoking in private units or even certain common areas, while other buildings conform to the restaurant/plane/hospital model and forbid smoking outright. It falls to an association’s board to decide whether and where residents can smoke. And, with marijuana becoming increasingly legal to certain degrees in various states, that smoking conversation is becoming ever more complex. 

Broadly speaking, when it comes to plain old tobacco, “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,” says Erwin. 

Legalize It!

While marijuana is still illegal on the federal level, states have the authority to relax laws for both medical and recreational use with little threat of federal enforcement, as Colorado and Washington state have already proven via their broad approaches to legalization. Recently, Massachusetts has followed suit in legalizing marijuana, but there has been immediate push-back from some local legislators, and what is or is not permissible can vary, depending on where one resides. Condominium boards have their own responsibilities to draft and enforce rules that are in the best interests of their owners. The language and limitations formerly applied to cigarettes may provide a template as to how to handle pot on your community’s premises.

“We have been doing amendments in regard to marijuana since 2012,” says Stephen M. Marcus, a partner with Marcus, Errico, Emmer & Brooks in Braintree, Massachusetts. “We have language pertaining to cigarettes and marijuana that we commonly use in amendments. That said, one need not smoke marijuana, as it can be baked into brownies or cookies, used in gummy bears, etc., and thus it need not create second-hand smoke.”

For reference, Marcus provides an example of the kind of language he recommends regarding marijuana prohibition in common interest communities:

“Effective immediately, smoking shall be prohibited everywhere on the property of the Condominium including, but not limited to, individual units, indoor and outdoor exclusive use areas, and indoor and outdoor common areas. No Unit Owner shall smoke, or permit smoking by any occupant, agent, tenant, invitee, guest, friend, or family member anywhere on the property. Smoking shall include the inhaling, exhaling, breathing, carrying, or possession of any lighted cigarette, cigar, pipe, other product containing any amount of tobacco, or other similar heated, smoldering or lit product including marijuana.  The growing and harvesting of marijuana is also prohibited.  Notwithstanding the said prohibition against smoking, the Board may designate (or remove from designation), an outdoor area for smoking (except for marijuana), provided this smoking area(s) shall not cause secondhand smoke to drift into indoor common areas, exclusive use areas or individual units.  Notwithstanding the said prohibition against smoking, smoking (except for marijuana), shall be allowed in the following units (collectively the “Grandfathered Units”) but only until such time as the unit is conveyed or transferred. Grandfathered units occupied by tenants shall become no smoking upon current tenant no longer renting his or her unit.”

When it comes to outright smoking bans, says Erwin, “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.”  

According to Charles A. Perkins, Jr., senior partner with law firm Perkins & Anctil in Westford, Massachusetts, in order to render a smoking ban palatable for existing residents, associations will often ‘grandfather’ in certain owners who had been smoking prior to the discussion of prohibition. “You ban marijuana from day one, but you allow residents who have been smoking cigarettes and still plan to reside in the building to continue to do so, under the agreement that it won’t present a nuisance,” he says. “Oftentimes that’s the only way that you will get the votes necessary to pass a non-smoking amendment. And some associations will outright state that no one can smoke anymore, while others will allow smokers several years to either quit or seek alternative options, while others still will allow existing smokers to continue ad infinitum.”

Legalize It?

Like Massachusetts, the state of New Jersey permits medicinal marijuana, but the state has yet to go so far as to legalize it for recreational use. That said, the murmurs to do so are growing increasingly louder, and thus discussions among associations as to how to deal with regulating smoking of all stripes – should the floodgates ever open – are prevalent. 

“There is no doubt that the number of smoking complaints are increasing in condominiums,” says J. David Ramsey, a shareholder with law firm Becker & Poliakoff in Morristown, New Jersey, specifically as pertains to cigarettes. “The building code is not intended to stop smoke from migrating from one unit to another, which it can, via openings in walls created for switches, outlets, dryer vents, etc. And although some responsible smokers do try to mitigate the problem by purchasing some type of air filter, our experience – as well as the reports on such purifiers – do not seem to indicate that they are particularly effective.”

According to Ramsey, many smoking-oriented complaints stem from residents lighting up on balconies, decks, or patios during the warmer months, when non-smokers are most likely to catch that smoke second-hand via open windows. “When a client tells of complaints about smokers on limited common elements, we advise them to adopt a rule banning outside smoking within so many feet of a building, or designate an area on the property where residents can go to smoke.”

As should be obvious by now, many of the same issues pertaining to cigarette smoking in close confines applies to that of marijuana smoke. The main difference is that, in New Jersey, other than when specifically prescribed to treat a medical condition, use of marijuana is against the law.

“We have had a few cases come up,” says Ramsey. “The first response we get when a letter is written to the smoker is that someone who resides in the unit has a prescription for a medical condition. But when we press and ask for a copy of that prescription or a note from the doctor, that defense often falls apart. When the prescription has been provided, we’ve asked the smoker to check with their doctor as to whether an edible form of marijuana would be just as suitable, thereby eliminating the smoke issue.”

“When we have prepared a smoking amendment for an association, we have included any kind of conduct that generates smoke; marijuana, pipes, cigars, etc.,” continues Ramsey. “Vaping is a related issue. Due to its recent introduction, there is little science available to report on its deleterious effects. I’ve read articles on both sides, and with respect to marijuana, there seems to be some consensus that, even for the person using it, it is less dangerous from a health perspective to use a vaporizer, rather than to smoke outright.”

Don’t Legalize It

Moving along in order from most to least legal, where marijuana is concerned, we arrive at New York, where it straight-up is not – despite New York City’s recent move to not arrest citizens for possession of small amounts of weed, but rather issue them a ticket. This isn’t to say, however, that associations do not or should not have policies in place regarding pot usage, because its (il)legal status does not really stop people from smoking the stuff.

“While I am not seeing a specific movement afoot to deal directly with the prospects of marijuana in New York – particularly since it has not yet been legalized – I am seeing an increasing frequency in the number of buildings that are generally putting the banning of all types of smoking on their agendas,” says Eric M. Goidel an attorney and partner with Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. which has offices in New York City. “This is inclusive of marijuana, e-cigarettes and hookahs, in addition to regular tobacco, pipes and cigarettes.”

Goidel notes that, somewhat comically, in buildings or areas that tend to be populated by younger demographics, owners have clamored to carve out exceptions for marijuana – not to specifically state that its use is permissible, as that would be a violation of the law, but to avoid explicit language that it is one of the proscribed methods of smoking included in any prohibition. “I had a building in Jackson Heights, Queens, where the board went back and modified its no-smoking amendment to the proprietary lease – which initially had incorporated language about marijuana, and was then defeated – and removed those magic words,” Goidel recalls. “Lo and behold, it then passed.”

That said, Goidel has found that unit owners and shareholders are finding marijuana smoke to be more offensive in some situations than cigarettes. “We’re up against an increasing acceptance of marijuana, but neighbors are still less tolerant of its odor than they are of regular cigarettes or tobacco,” he says.

Odor issues can be mitigated, of course, via an array of options, including sealing any openings surrounding sockets, radiators, riser vents, etc., putting a sweep on the door; or installing some type of smoke-filtering equipment. 

Should there come a time when medical marijuana is permissible in New York or Florida, the degree of difficulty to prohibit all smoking would be nigh on impossible. “If you’re dealing with a medical situation, wherein it’s a necessity, a board will not be able to prohibit that,” admits Goidel. “What type of medical documentation that will be required to satisfy that is not implicitly clear, but I would analogize it to pet prohibitions, where people circumnavigate the rule by having their pet declared an emotional support animal. Sometimes you just need a friendly doctor to write you a letter.”

With multiple states in various stages of acceptance regarding marijuana – and its viability as a cash crop – one cannot predict what the future will hold. Will the Jeff Sessions of the world have their way and crack down on a plant that they feel is a dangerous narcotic, leading to unimaginable horrors and copious hours spent gaming? Or will we one day see condos and co-ops that prohibit cigarettes but openly advocate for pot use? Time will tell!           

Michael Odenthal is a staff writer and reporter for The Chicagoland Cooperator.