Q&A: Smoking on the Balcony

Q. I’m a resident owner in a 56-unit condo building, and share a common balcony with my next-door neighbor, divided by just a short rail. I have sensitivity to cigarette smoke, and don’t believe it’s fair that the building allows smoking on the balconies. I have my door and windows open since it’s getting nicer out, but have to close them when people go out and smoke. To add insult, when it rains, they smoke inside and the smoke comes through the walls. Is there anything we can do to ban smoking on shared balconies?

                —Owner Who’s Had Enough

A. “The association can certainly ban smoking on the common area balconies,” says attorney Robyn Kish of the firm Klein, Daday, Aretos & O’Donoghue, LLC, in Rolling Meadows. “There are two methods the association can use: the board can adopt a rule, or the owners can pass a declaration amendment. A rule is easier to pass, as it does not require owner approval –  just a vote by the association’s board – but a declaration amendment is voted on by the owners, and is more likely to stand up if challenged in court by an owner.

“A smoking ban in individual units would require a declaration amendment. However, a smoking ban on a limited common element – such as a shared balcony – could be done by rule if the declaration allows the board to make rules regarding limited common elements (which most declarations do). Even if challenged by an owner, a rule in regards to a limited common element will stand up in court, so long as it is reasonable.

“In regards to smoke from the unit, the board can adopt rules requiring owners to prevent smoke infiltration into other units by mandating that owners seal their unit or use an air purification system. Most declarations have a nuisance clause prohibiting offensive or noxious behavior that creates a nuisance for other owners. Using this provision, the board can adopt rules to prevent the nuisance of cigarette smoke into other units.”

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