No Right to Smoke. In a written opinion by the Public Health Institute, people do not have a constitutional or fundamental right to smoke. Moreover, nicotine addiction is not a protected medical condition or disability. Plus, it is defined as a nuisance. There has been a steady movement over the years to prohibit smoking in residential units. The American Lung Association published "Smokefree Policies in Multi-Unit Housing." A statute that went into effect January 1, 2013 (Civil Code §1947.5) allows landlords to ban all smoking in buildings, including dwelling units, and on the property. Accordingly, smoking can be banned by condominium associations, including inside units.
Cities Restrict Smoking. The City of Belmont passed an ordinance that declares secondhand smoke a public nuisance and forbids smoking in apartments, townhouses, and condominiums that share a common floor or ceiling (see Belmont ordinance).
- Oakland extended its outdoor smoking ban to include parks, bus stops and outdoor eating areas, and mulled over a ban on smoking in apartments and condominiums.
- In 2012 Santa Monica banned smoking for new tenants of apartments and condos and empowered neighbors to take them to court if they did so.
- In 2011 Pasadena banned smoking in all multi-family units including condominiums and townhouses. The statute prohibits smoking in all common areas and inside units. (See Reduction of Drifting Smoke.)
- In 2012 The City of San Rafael passed an ordinance banning smoking in multi-unit housing (including condominiums).
- November 26, 2014 a smoking ban took effect in Culver City prohibiting smoking in all areas of multi-unit housing in the city, including indoor and outdoor common areas and individual units.
Court Upholds Ban. In Colorado, an association amended its CC&Rs to ban smoking inside units. The restriction was challenged by smokers. The court rejected the smokers' argument that the restriction exceeded the association's authority. The judge noted that second-hand smoke is a nuisance and upheld the CC&R amendment as proper and reasonable. (Christiansen v. Heritage Hills.)
HOAs That Ban Smoking. In our firm's newsletter, we asked readers to report if they had successfully banned all smoking in their development, including inside units. Following are some of the responses:
HOA #1. You asked readers to share whether they had a ban on smoking in their governing documents. We first banned smoking in the common areas back in 2009. In 2010 members adopted a complete ban ANYWHERE within the four corners of the parcel (common area, inside the units and sidewalk). We extended the ban to members, residents, guests and vendors. -Sandy O, San Francisco.
HOA #2. We are a 36-unit condo association that recently adopted a no smoking policy both inside the units and in any part of the common area EXCEPT for a designated smoking area in the common owners parking lot. We adopted the policy based on the nuisance clause in our CC&Rs. -Rick H, Canyon Lake, CA
HOA #3. Our association has the following restriction: "No owner, family member, tenant, resident, guest, business invitee or visitor shall smoke cigarettes, cigars, or any other tobacco product anywhere within the boundaries of BTH. This prohibition shall include the outside common area, enclosed common area, exclusive common area (balconies and patios) and all units within the project." -Jonathan P, Berkeley, CA
HOA #4. I have one association in Tiburon that doesn't allow smoking anywhere on the property, including inside units. "No Smoking Property" signs are at each property entry. -Trudy M.
HOA #5. Our association prohibits smoking in all areas with the exception of a single location on the roof deck. Because we have a passive ventilation system that is constantly introducing fresh air into the units, smoking inside the units would quickly cause cigarette smoke to propagate between units and is therefore prohibited. In addition to our CC&R restriction, we have a separate smoking restriction policy. -Brian H, San Francisco
HOA #6. We amended our documents to become a non-smoking facility both within individual units and in the common area. We made an exception for two older residents to continue smoking on their balconies only. These two have now passed away, so we are a smoke-free complex. -Angela D, Los Gatos
HOA #7. We successfully amended our CC&Rs to ban smoking throughout our seniors 112-unit condo (including inside units). -Steve R, Torrance
Amend Documents. Complete smoking bans can be done through a rule change adopted by the board of directors but the better approach is to amend the CC&Rs by a vote of the membership. A CC&R amendment has a presumption of reasonableness and puts all current and future members on constructive notice of the ban since CC&R amendments are recorded. It is also less likely to be challenged in court since the ban was approved by the membership rather than the board. And, if litigated, it has a better chance of withstanding the challenge since the burden is on the complaining party to prove the restriction unreasonable. The challenge would have little chance of succeeding because of the well-documented dangers associated with smoking.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.