With the persistence of COVID-19 there is a current focus on the effects of smoking in apartments, condominiums and townhomes on their residents. The Common Interest Community Work Group of the Virginia Housing Commission, on which Mike Inman serves, recently discussed the issue. Not only is there a longstanding health concern for the smokers but there is heightened concern for their children and neighbors in attached living quarters. Multifamily buildings, particularly older ones, are often not constructed so that smoke and other odors from one unit will not travel to other units or the common areas. There are frequent complaints raised by residents in multi-story properties. The voices of those who are affected have increased in number and part of the reason is that the smokers are spending lots of time at home and so are their school age children during the pandemic. Even after the pandemic ends working from home will remain popular. Consequently, the problem of second hand smoke effects has increased exponentially. What can be done?
Perhaps a law banning smoking in certain types of structures where there is a general likelihood of significant transmission of smoke between units? The adverse health effects are significant according to the Virginia Department of Health. For years the issue has been dealt with by requiring smoking outside the building but typically governing documents do not ban smoking in the units. It is possible to ban smoking anywhere in a building or even in a townhouse association. To do so requires an amendment to the declaration in the case of an HOA or the declaration or bylaws of a condominium. Amending the documents typically requires a 2/3 vote of owners of the units. That may not be difficult to achieve now because a recent vote was taken in a high rise where 74% of votes cast were in favor of amending the documents to affect a total ban of smoking in the building. Consideration is being given to enacting enabling legislation that would allow associations to make their own determinations of the restrictions on smoking – the idea being that one size does not fit all and property rights are important in America. The statute could authorize association governing bodies to pass rules against smoking as they see fit to address the specific needs of their communities. If you have an association where this issue has become a topic of frequent discussion, we are available to discuss your options for regulation based on your governing documents. New association documents will likely start providing for the rule making authority of the board with respect to smoking of tobacco and other substances and their initial rules will address smoking in and on the property. Stand by for an update during the upcoming legislative session.