Can HOA prohibit smoking? Smoking is commonly considered a nuisance, especially in closed spaces. That said, before board members ban the activity altogether, it is important to understand the association’s limitations. Does the HOA even have the authority to ban smoking?
Can HOA Prohibit Smoking?
Smoking can be a contentious topic among homeowners’ associations. While it’s an activity that plenty of establishments don’t allow today, designating smoking areas instead, HOAs may not have the same authority.
An HOA’s authority to prohibit smoking depends on applicable state laws and the association’s governing documents. In Illinois, the Common Interest Community Associations Act does not expressly permit smoking bans. That said, most HOAs have the authority to adopt rules under their CC&Rs and bylaws.
Can HOA Prohibit Smoking in Common Areas?
Can HOA ban smoking? In general, an HOA can ban or regulate smoking in common areas and amenities. These include swimming pools, clubhouses, and fitness centers.
Typically, the HOA board can impose an outright ban on smoking in common areas through a simple resolution. This means the board does not have to amend its CC&Rs and bylaws. A change in rules and regulations is often enough.
Can HOA Prohibit Smoking in Individual Homes?
Banning smoking inside individual homes or on private patios is much more complicated. Homeowners generally have the right to enjoy their private spaces in any way they like, including smoking. Most courts don’t favor rules that infringe on property rights, especially in single-family HOAs.
If an HOA board wishes to outlaw smoking even in private homes or patios, a simple resolution won’t be enough. It will generally require an amendment to the CC&Rs, which will require a membership vote.
Still, board members should not expect unanimous support. Smokers will obviously challenge the proposal and even initiate lawsuits if the amendment passes. Boards should weigh the legal problems such a ban will undoubtedly bring against the benefits of an outright ban on smoking.
Can a Condo Ban Smoking?
A condo association’s authority to ban smoking depends on state law and its governing documents. In Illinois, the Condominium Property Act does not explicitly permit tobacco bans, but it does address cannabis.
According to 765 ILCS 605/33, a condo’s governing documents may prohibit or regulate the smoking of cannabis inside a unit. That said, the COA can’t ban or limit any other form of cannabis consumption within units but may do so in common areas.
Can Condos Prohibit Smoking Inside Units?
Condominiums are structured differently from single-family communities. In condo buildings, units sit close together, sharing walls, ceilings, and floors. This allows odor to travel more easily between units, making smoking a clear nuisance.
In general, a condo board can prohibit smoking inside units. The governing documents must grant the board this authority.
Can Condos Prohibit Smoking on Balconies?
Some condo residents smoke on balconies so the odor doesn’t stay inside the unit. This is also commonly used to skirt smoking bans in units. For this reason, many condo boards also wish to extend the HOA smoking restriction to balconies.
Balconies are typically classified as “exclusive-use” common elements, which means the condo can still establish rules for them. This includes smoking bans or limitations. That said, the governing documents must grant this authority as well.
Can Condos Prohibit Smoking in Common Areas?
Smoking bans in common areas are less of a challenge. Condo associations generally have the authority to adopt rules concerning the operation and use of common areas. This includes smoking restrictions.
Can HOA Prohibit Smoking? Reasons Why
Smoking may be a way to relieve stress for some people, but it has plenty of downsides. Here are the reasons an HOA or condominium would want to ban smoking.
1. Fire Hazard
Smoking can cause fires, endangering residents’ lives in the community. It’s even worse in condo buildings, where units sit on top of and next to each other. Fire can quickly spread, resulting not only in deaths or injuries but also in property damage.
2. High Insurance Premiums
Associations that allow smoking typically face higher insurance rates. Carriers want to minimize risk, and if smoking is permitted, the fire risk increases. With higher premiums, boards will be forced to adjust their budgets and even raise dues.
4. Property Damage
Smoking can lead to fires, which can lead to property damage. Yet, even if nothing catches fire, secondhand smoke can significantly stain walls, ceilings, and furniture. Not only that, but the smoke can leave a stench on linen and upholstery.
3. Health Risks
Smoking poses significant health risks for both the smoker and the people around them. Smoking itself can increase the risk of cancer, stroke, lung diseases, and heart attacks, among other things. Secondhand smoke can result in the same illnesses.
Moreover, secondhand smoke has been shown to have adverse effects on women’s reproductive health. In children and babies, secondhand smoke can lead to respiratory issues, asthma, and even death.
How to Enact an HOA Smoking Policy
Some communities try to enforce a smoking ban under existing nuisance clauses. This can be possible, but boards should expect owners to call the rule into question. If the nuisance clause is too general, vague, or doesn’t explicitly include smoking, it’s a lot harder to enforce.
While the board can generally pass a resolution restricting smoking, the most definitive way to do so is to include it in the CC&Rs. Some developers write the prohibition into the original governing documents, but not all do.
If an association currently doesn’t have such a restriction, the board should consider amending its CC&Rs. Depending on state laws and the CC&Rs themselves, an amendment will usually require a membership vote.
In Illinois, condominiums must obtain a two-thirds vote from the unit owners to pass an amendment (765 ILCS 605/27). For HOAs, the voting threshold is set by the governing documents. Furthermore, amendments must be recorded with the county.
Official amendments make enforcement indisputable. If the CC&Rs clearly prohibit or restrict smoking, owners are less likely to contest or challenge the rule than a simple resolution.
Of course, many associations still struggle to enforce HOA smoking rules. After all, boards must have evidence that a unit owner is in violation. This is often difficult when the act is confined to private homes or inside units.
Can HOA Prohibit Smoking? Answered!
Banning smoking can reduce fire hazards, property damage, and health risks within the community. That said, boards may not always have the authority to enforce such a rule. It is best to check state laws and the governing documents for verification. Oftentimes, a smoking ban necessitates an amendment.
Hillcrest offers HOA management services to communities in Chicago. Call us today at 630-627-3303 or contact us online to request a proposal!
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