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Smoking Bans in Apartments and Condos: Legal?

Smoking is a real health hazard. But for a landlord, is it legal to ban smoking inside apartments? Similarly, for condo associations, is it legal to ban smoking inside condo units?

According to a blog post on Boston.com's real estate blog, more and more condo associations in the Boston area are trying to ban smoking inside individual units.

The reason that many condo associations are banning smoking is due to the fact that smoking is the cause of many fires, according to the Centers for Disease Control and Prevention.

While the move to ban smoking in condos is a smart move from the health and welfare angle, it’s not always the smartest move from the legal angle.

Let’s first talk about home ownership and condominium. Condos are a form of common-interest development. When you purchase a condo, you’re buying the space inside the condo, essentially the space between the walls.

Therefore, condo ownership is not quite the same thing as owning a house. The common areas are owned jointly by all the residents and it’s usually regulated by a condominium association. The condo association has governing rules called the common covenants and restrictions or “CC&Rs”.

So if something is for the benefit of all the homeowners in the development, then it’s not unheard of for the CC&Rs to have rules prohibiting certain behaviors or activities.

But note that there’s a difference between prohibiting or enforcing what goes on in common areas, versus what goes on in private areas.

However, with regards to CC&Rs restricting second hand smoke, the law seems to favor the condo associations in such situations, allowing them to impose such restrictions, says the Tobacco Control Legal Consortium.

Moving on to apartments. There was a court ruling back in 2005 that dealt with a landlord evicting a tenant for smoking, after other tenants complained about second hand smoke. The case was head by Boston’s Housing Court and it found for the landlord.

It’s nevertheless a tricky area of law and if you’re trying to enforce a smoking ban in your apartment building or condo, it might be wise to check with a real estate attorney, first.

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