The board has just implemented a new ban on smoking. However, they have
indicated that those shareholders who smoke and were shareholders prior to the
effective date will still be allowed to smoke in their own units, but not on
the terrace. We bought our unit with a terrace for the sole purpose of being
able to smoke out on our terrace and not inside our unit. Does the board need a
majority shareholder vote to implement such a house rule? Is this ban on
smoking on one's own terrace enforceable?”
“The governing documents and the house rules of a community are subject to change
through the amendment process,” says attorney Kenneth Direktor, a Fort Lauderdale-based shareholder attorney at
the law firm of Becker & Poliakoff and chair of its Community Association Law Practice Group. “The Florida Supreme Court has ruled that an association may adopt amendments to
its governing documents to impose certain use restrictions upon the community
property and to apply such restrictions against all owners regardless of when
they took title. Even if owners purchased their units with the intention of smoking on the
terraces, they have to abide by the new rules of the community when enacted.
There is a concern about the reasonableness and legality of any rule that
creates two classes of owners.
“Assuming that the board has rule-making authority in the governing documents, a
board-made rule banning smoking on the terraces is subject to a test of
reasonableness. In June 2005, a Broward County trial court held that excessive
secondhand smoke from a neighboring condominium unit amounted to a nuisance.
With the known health risks from secondhand smoke, such as cancer and heart
disease, and the possibility that the smoke may amount to a nuisance, the
smoking ban is likely to be considered reasonable, especially since smokers are
still permitted to smoke in their units.
“While the smoking ban may appear to be reasonable, such a restriction has never
been tested in Florida appellate courts. I note that, in 2006, a Colorado court
upheld an amendment to a declaration of condominium that banned smoking within
the boundaries of its condominium units. While not binding to Florida courts, the Colorado case may be a very strong
persuasive precedent. Although these decisions related to amendments to the declaration of condominium
in condominium communities, the decisions present reasonable arguments
supporting similar amendments to the bylaws of a cooperative.”