pexels-photoWhile enjoying themselves on their balcony, condominium unit owners have been consistently molested by clouds of cigarette smoke emanating from their neighbor’s balcony. They want to know what the Association can do to help.

The answer depends on what is in the declaration of condominium.

Assuming the declaration doesn’t include a restriction against smoking on the balconies, a general nuisance provision in the declaration may provide the Association or complaining unit owner with some recourse. The drawback to this general provision is that without specifically prohibiting smoking on limited common elements, enforcement may be rather challenging and time-consuming.

If the declaration or bylaws allow the Association to make rules regulating the limited common elements, the Association may have a simpler approach to eliminate the smoking problem.

If that is the case, the Association could pass a rule which prohibits smoking on balconies, classifying it as a nuisance. After all, having smoke blown in your face certainly disrupts your peaceful enjoyment of your balcony.

By specifically prohibiting smoking, enforcement of the rule becomes much easier.

While under the general nuisance provision, the smoker could have argued that his smoking did not rise to the level of a nuisance. Under this specific provision, there is no room for the smoker to argue whether or not smoking falls under the definition of “nuisance.”

With the prohibition spelled out in a properly-adopted rule, the Association can more easily take enforcement action, and the unit owners can go back to enjoying their balcony in peace.