Q&A: Smoked Out

Q I live above a daily cigar smoker, and particularly in the warmer months I like to leave my windows and balcony door open. I’ve complained several times to the board and management that the smoke is getting into my unit, my rug, my bedsheets, my furniture. I’m told that although smoking is banned inside the building, my neighbor is totally free to smoke on his balcony regardless of where the smoke goes. Do I have any recourse at all in this?

—Non-Smoker in Nutley

A The right of a condominium association to establish rules and regulations for the benefit and safety of its residents is seldom challenged,” says Michael Mirne, an attorney based in Ocean. “However, in making the determination as to the extent to which smoking must be restricted, the rights and interests of non-smoking residents must be considered. The right of the residents to enjoy a safe and comfortable living environment has led many condominium associations to enact regulations forbidding the use of cigarettes, cigars and pipes inside the residential buildings. However, some associations do not have such a restriction on the area immediately outside of the units. To this end, the reader is correct in assuming that, under the current rules and regulations, the offending neighbor has the right to continue to smoke on his balcony with absolutely no consequence, except to his own health.

“Fortunately, rules and regulations of a condominium association are easily changed. For the specific voting requirements of your complex, you are encouraged to check your master deed. Sometimes, changing the regulation can be as easy as obtaining a 2/3 “super-majority” vote. It is further clear that the vast majority of New Jersey residents are not smokers, and perhaps, the residents in the reader’s complex would not oppose an amendment to the bylaws that prohibits smoking on the terraces as well.

“Thus far, there are no reported cases in which a court has ordered a condominium association to enact a no smoking policy. Therefore, the solution to the problem presented by the reader is not so much of a legal solution as a political solution, which will require obtaining the votes to change the current rules and regulations. The reader is encouraged to begin attending meetings and propose the amendment to restrict smoking in the areas directly outside of the condominium units. Clearly, at least one resident in the complex would oppose the amendment to the current rules and regulations. However, it is very likely that the regulation would ultimately be changed, and the reader can begin using his terrace without the nuisance of being exposed to cigarette smoke.”

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