YES – it looks like a Condominium Home Owners Association CAN prevent you from smoking in your own corporate rental property… But only if it changes it’s Bylaws they can not just make a rule.
The US Supreme Court weighed in on the smoking debate when it held, in 1973, that the act of smoking is not a fundamental right.
Can a condominium association prohibit smoking in the units? Maybe. A classic case from a 1999 California Supreme Court held that “anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.” This approach is universally adopted in courts throughout this country.
Simply stated, every condominium unit owner is legally bound by the existing legal documents as they exist when the unit was initially purchased and as they may be legally adopted from time to time.
What are these legal documents? In condominium law, there is a hierarchy that must be followed by the board of directors and – if there is litigation — by a Judge. The highest priority is the condominium act of the state.
Next, there is the “Declaration“, which is a document recorded among the land records in the county (or city) where the property is located. That document tells the world that the property is “declared” to be a condominium, and spells out some basic issues – such as what constitutes a common element versus a unit.
Next in line are the Bylaws – oversimplified the bible of the association. And finally, there are Rules and Regulations adopted by the board of directors. The board has great latitude to enact reasonable rules and regs, but their authority to do so must come from the hierarchy above. For example, if the Bylaws state “no pets”, the board cannot change that. However, if the Bylaws allow pets, the board can enact rules such as requiring vaccination, or keeping dogs on a leash while on common property. Clearly, it can prohibit smoking in both common and limited common elements. Boards have fairly broad authority to manage and operate the building. But what about banning smoking in individual units?
The key is to amend the Bylaws or the Declaration; that always requires a super majority vote of either two thirds or even three fourths of the owners. Since the Declaration has a higher level of priority, my preference is to amend that legal document.
Amending condo documents is not easy. The legislators who enacted the condo laws wanted to make sure that a small minority (or even a slim majority) could not change certain basic issues – issues that impact directly on all owners.