The next time you take a listing or showing a condo you should consider checking their bylaws regarding smoking. More and more Condominium’s are banning smoking at common areas and some are working towards banning smoking in individual units.
From Harris B. Katz FROM LAW FIRM GOEDE, ADAMCZYK, DEBOEST & CROSS
The Florida Clean Air Act applies to all types of tobacco smoke and is generally accepted to apply to both condominium and homeowners’ association’s indoor common elements. In addition, community associations also have the power to create smoking bans even for outdoor common elements not specifically covered by the Clean Air Act, such as pools, tennis courts, dog walks and playgrounds. Because a board’s rule-making authority is derived from the governing documents, such rules are generally enforceable, provided they are “reasonable.” These restrictions on smoking can even be extended to limited common elements, such as balconies, by a proper vote of the board provided that the governing documents provide such rule-making authority. Banning smoking within the units is far more complicated because, unlike common elements and limited common elements over which the association has certain ownership rights (as defined the association’s declaration), the units themselves are owned by members. While the majority of declarations have included “nuisance” clauses that allow associations to regulate and prohibit nuisances, such clauses rarely specifically reference smoking as a nuisance. Because of this, it is unlikely that a court or arbitrator would stretch a nuisance clause to cover smoking if it is not expressly included in the clause.Therefore, if an association wishes to ban smoking within the units, the governing documents must be amended to include this specific prohibition within the nuisance clause. Although amendment procedures may vary from association to association, the declarations need to be reviewed by an experience attorney to determine the proper procedure for your association and whether such nuisance rules can be incorporated into your existing documents.
Make sure you are protecting your buyer or seller by addressing this up front!