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posted: 2/16/2013 5:07 AM

Condo boards can regulate tobacco smoke in common areas

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Q. I live in a 76-unit condominium and a person who smokes recently moved into a unit on my floor. The smell of the smoke in the hall is very strong and I am concerned about the effects of secondhand smoke as I am a cancer patient.

I realize the owner has the right to smoke in her condo but are there any laws that protect people in a condo building from secondhand smoke?

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A. The statutes that ban smoking in certain locations of property don't extend to individual condominium units. That said, the association's governing documents can offer relief if they include the typical language that prohibits residents from engaging in noxious or offensive conduct or conduct that may be an annoyance to other residents. Tobacco smoke that migrates from one unit to the common elements or to other units can trigger the application of such a restriction. This would permit the board to take enforcement action against the offending resident.

The association can also address the specific issue of smoking through its own rules. Rules could provide that smoke from tobacco use within an individual unit may not migrate into any other unit or the common areas.

And 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 other 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 that I anticipate will become more commonplace as the years go on.

Q. Damage was done to my condominium unit when a pipe from the unit above mine broke. I talked to the owner's insurance company and they told me they are not responsible because there was no negligence.

A. With respect to the damage to units caused by a water leak caused by an owner or originating in a unit, depending on what was damaged, a claim should be made with the association's insurance carrier. Regardless of cause, the condominium association's insurance is generally responsible to pay a covered loss to bare walls, floors and ceilings of the units (but not floor covering or decorating/wallpaper).

Let me point out that there is an often misunderstood distinction between the association's/owner's responsibility to generally maintain, repair or replace a particular part of the property and as to what party has the responsibility to insure the same part of the property against a casualty loss. This is governed by Section 12 of the Illinois Condominium Property Act. Surprising to many, the unit owners are "insured parties" under the insurance obtained by the association.

While the association may not be responsible for the damage that gives rise to a loss (like a leak from one unit), the casualty loss may trigger coverage under the association's master insurance policy. So, if there was damage to the common elements and the units (e.g., bare walls, floors and ceilings of a unit) from a water leak (regardless of the lack of fault by the association), the association's insurance may be triggered and a claim made on behalf of the owner suffering damage.

Also, note that, with respect to the association's master insurance policy, the board may, in the case of a claim for damage to a unit or the common elements, (1) pay the deductible amount as a common expense, or (2) after notice and an opportunity for a hearing, assess the deductible amount against the owner who caused the damage or from whose units the damage or cause of loss originated, or (3) require the unit owners of the units affected to pay the deductible amount. The owner of the unit who caused the damage or from whose unit the damage or cause of loss originated here could be responsible for the deductible.

With respect to items not covered by the association's property insurance in the damaged units, the owners of any unit damaged by the water leak is either going to have to make a claim with their own insurance carrier or with the owner who caused the damage or from whose unit the damage or cause of loss originated. The damage not covered by the association's insurance is a matter between the unit owners.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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