Who the Hell Is Smoking?
So, Kathy, one of my happy clients, reaches out to me about 10 months after the purchase of her new condo to tell me that she’s at her wits end. We love to chew the phat when we talk, but on this occasion, she blows right by our normal pleasantries and dives into what’s on her mind. She goes on to tell me that if covid weren’t enough already, the person who bought the condo next door to her is a smoker…“who really enjoys smoking,” she underscores. “So now I can’t go out because of covid, and I can’t stay in because of smoke?! Oh my God!” I could hear her breaking down over the phone. It wasn’t pretty.
“It’s been about 6 weeks now and I swear, I can’t live like this.” Her tone is distraught. Our conversation about this went on for almost an hour. “I even introduced myself as their next-door neighbor, and politely and really respectfully brought up the subject about his cigarette smoke,” she says. “Ty, I asked him really nicely if there was any way he could do something to keep the cigarette smell from seeping out of his unit and into my unit next door.” She goes on to explain that his response was, “well, it’s my condo and I can do in it what I want.” And what did you say, I asked. Her response, hyperbole aside, was “oh, words were exchanged, verbal shots were fired, and it was 90 miles an hour, downhill, with no brakes from there.” Needless to say, her conversation with her neighbor didn’t end well.
This is an issue that many condo owners experience. For some, the experience is unpleasant yet bearable, for others it’s a horrible condo life experience. But let’s not be too quick to play violins for non-smokers. I mean, for someone who smokes, imagine buying a condo, and not being able to do the one, simple, enjoyable thing in it that you love to do, in a place that you bought, to do it. This can be, and in many cases, is also an extremely disheartening and/or equally horrible condo life experience for someone who smokes.
So, cigarettes stink. And while some may disagree, that’s understandable and fair. But since there is a thriving industry that provides products to pacify and eliminate the smell of smoke, there has to at least be some agreement that they don’t smell pleasant. Cigarette smoke smell latches on, absorbs into, and permeates everything it comes into contact with. And as controversial as smoking is in general, it’s even more challenging and complex in a multifamily environment. Especially a community of co-owners. It is a serious, ongoing issue that continues to generate debate and heat, as a sensitive topic demanding attention and raising ires among those who smoke and those who don’t. But since we’ve been in the midst of covid, the issue of smoke has been dialed to 10!
Smoke can be as invasive a water. It makes its way through vents, doors, window cracks, utility closets, even those holes behind your kitchen appliances. Just like water, it tends to find a way. And in addition to dealing with cigarette smoke, marijuana was introduced into the mix, and has been legal in Washington, DC (with limitations) since February 2015. And that’s a whole different type of smell, as equally invasive and permeating as cigarette smoke. And then there’s cigar smoke. Have you smelled cigar smoke? Crazy pungent! And you know it when you smell it. All that said, passive smoke is a big concern for those who smoke, and those who don’t living in a multifamily condo community.
But who’s right and who’s wrong? Is one owner’s rights superior to the other? Can an owner who does not smoke make a demand that another owner, who smokes, does not smoke in their own condo unit? Owners are made up of those who smoke and those who don’t, and an association’s governing documents are customarily written to uphold owners’ rights equitably.
As I said, it’s an extremely controversial issue, and should be addressed on an individual community basis. Still, it’s a problem that owners are living with and have to deal with.
Okay, let’s talk about some solutions. Here are a few to options to approach:
1. A smoke-free building. First, is the community designated as a smoke-free building? If so, the community is in a way better position to enforce and manage this. Upon the request of a resident (s), the board of directors can solicit the community to make the building smoke-free. And this can easily have all the work and makings of a race for presidential office. Adopting a smoke-free building requires a change to the governing documents, which requires community involvement, meetings, buy-in, and voting. This option is not for the meek or passive board of directors, or community of residents, who co-signed onto this, but are not committed to it. This can be an arduous task that will require the association’s attorney to get involved, and the process will take considerable time, legal administration, and legal fees. Not to mention the high probability of strong, emotional, and philosophical differences of residents on the issue.
And while this decision may be beneficial for the community, it’s not automatically mission accomplished. For any community rule or regulation is only as good as the enforcement that accompanies it.
In my years of dealing with this issue and how a community addresses it has taught me that a smoke-free or even smoke-empathetic building comes down to 2 questions…how badly does the community want it, and do they have the resolve to see it through?
2. If the building is not designated smoke-free, and has resident complaints about smoke, then I suspect some people are losing sleep over this issue. If the building is not designated smoke-free, and the community already has language in its governing documents or rules and regulations to address smoking, an owner can work with, and more importantly, put the burden on management and/or the board of directors to work with the other owner (who smokes), to explore and exercise options to mitigate and contain the smoke. This can include, but of course, is not limited to:
· Management sending courtesy notices to the resident regarding their smoke.
· Suggestions for containing and/or expelling smoke outside.
· Frequent air filter changing, air purifiers, smoke reducer products.
· Opening windows and/or using the balcony (although this too may present challenges), leaving the unit to smoke (which is a hard sell), designating an area or room in the home for smoking, among other options.
· If an owner is difficult to work with and is not considerate of the impact of their smoke on other residents, the impacted owner can put pressure on management and/or the board of directors to issue violation notices and fines consistent with the governing documents.
3. Minimize the smoking population. Some communities, seriously committed to finding solutions, have had conversations with their attorneys to consider language in their governing docs to that prohibits tenants from smoking. Yep. Tenants are not owners and thus, do not carry rights as owners in the governing documents. This option could go a long way to improve this issue within a community. After all, tenants who rent are also among those who smoke in the community. But again, even if adopted, this rule is only as good as the enforcement that accompanies it.
4. Cigarette smoke detector. Again, for the owner who smokes, there must be equal consideration regarding their rights as an owner in the community. As unpleasant as it was, Kathy’s experience is not representative of all owners. There many, very considerate owners who smoke, are exceptionally cognizant of how their smoke affects others, and invest significant time and money to contain and mitigate their smoke.
And it is not uncommon for even well-intentioned non-smokers to make claims about the presence of smoke that are exaggerated or that may not be accurate. This happens often when a sensitive, non-smoking owner has been dealing with the smoke of a neighbor over a long period of time, and mistakes the smoke from a 3rd party, as the smoke from the second. But change is occurring in communities, and we’re seeing that owners who smoke are now pushing back on management and boards and putting pressure on them to be equally diligent in finding solutions that monitor the presence of smoke, such as a cigarette smoke detectors and other options to help manage and verify frequent complaints made by non-smokers, post owner mitigation.
As I will often reiterate, condo owners are not just neighbors, but they are also co-owners and business partners. The key here is for all parties to work together to find a tolerable medium where those who smoke can, simultaneously while those who don’t smoke are not sharing the experience. Multifamily condo life is about owners finding common ground to live in harmony and respect for one-another, and jestfully, though not so far-fetched, prevent upheaval.
