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posted: 1/14/2012 12:01 AM

Condo talk: Responding to secondhand smoke complaints

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Secondhand smoke is nothing to sneeze at. Complaints are on the rise from residents of associations who say tobacco smoke enters common hallways and/or their units from the units of smokers. Associations can't ignore these complaints.

Recent scientific evidence concerning health effects of secondhand smoke, case law from other states, and the trend in public policy on the issue of secondhand smoke all dictate a board of directors of an association should investigate complaints of unit-to-unit (or unit-to-common element) secondhand tobacco smoke.

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This would require the board to take appropriate action if it finds there is a secondhand smoke issue.

A typical provision in an association's declaration of covenants provides that "no noxious or offensive activity shall be carried on in any unit or in the common elements, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other unit owners or occupants."

It would not necessarily be unreasonable for the board to take the position that secondhand tobacco smoke that enters common elements or other units from an owner's unit violates such a covenant. That is, the board could deem that smoking tobacco that produces secondhand smoke intrusion is noxious or offensive activity and/or an annoyance or nuisance.

Prudence dictates that the board promptly investigate secondhand smoke complaints to determine if they are well founded, and I suggest the use of an incremental approach to dealing with such issues. First an inspection of the unit from which the smoke originates, and of the affected common elements/unit(s) should be conducted to confirm there is secondhand tobacco smoke intrusion.

Second, if there is smoke intrusion, the board may suggest a meeting with the offending resident and request voluntary remedial measures be taken. The remedial action would be intended to prevent tobacco smoke from escaping the smoker's unit.

Third, the association may need to consult with a third party expert to craft a remedy. Such measures might include, but are certainly not limited to, the installation of an exhaust fan, stoppers underneath the door (however, this could negatively impact the airflow design of the building), smokeless ashtrays, and filling gaps around pipes and outlets from which tobacco smoke escapes. The board should outline a list of measures the offending resident should take, and provide a deadline for compliance. There may be issues with the association's HVAC that need to be investigated, as well.

Fourth, if the smoker fails to comply voluntarily, or if the suggested measures are not effective, the board should consider more formal means to obtain compliance. This could include fines or even litigation to require the offending resident to take remedial action. The board should first provide the offender written notice of the violation of the covenants and an opportunity for a hearing (this might be required under the association's declaration).

Some buildings ban tobacco smoking in the common areas, and other buildings have become nonsmoking communities and ban smoking throughout the property, including inside the individual units.

More and more associations are considering a ban on smoking in the individual units (and without any grandfather provision). Such an aggressive ban will likely require an amendment to the declaration (requiring owner approval), and not simply a rule adopted by the board. However, no Illinois appellate level court has rendered an opinion on the issue of banning smoking in units by way of rule (or amendment), so any challenge would be a case of first impression in Illinois.

It is the board's duty and obligation to promptly address a resident's complaint that smoke is entering the common elements and or units from another unit. The board should attempt to resolve such a matter incrementally and amicably. Although a total ban on smoking is a drastic solution, it is a restriction I anticipate will become more commonplace as the years go on.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. This column is not a substitute for consultation with legal counsel.

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