Rob Samouce: In a condominium, smoke can be a pleasure to one owner and a nuisance to another

Time and time again, the question arises as to rights of one condominium owner to smoke or cook out on his patio versus the rights of an owner above not to have to put up with the rising smoke when the upper owner wants to enjoy sitting on his patio. It seems that many smokers now choose to smoke outside their unit rather than smelling up the inside of their unit. In one aspect this has solved a worse problem that used to often arise. That was smoke permeating through the inside walls of a unit up to the upper unit and smelling up the upper unit inside. This type problem was solved in workplaces by laws being passed requiring smokers to go outside. No similar laws in Florida exist concerning smoking in residences.

Therefore, it is up to the condominium association to decide what smoking or cooking rules, if any, will govern a particular condominium. For most situations, association smoking rules are not necessary and owners using simple "common courtesy" will prevent such problems from ever happening.

For cooking on balconies, some associations allow this as long as propane is not being used. Others require owners to outdoor cook only at grilling locations out on the common elements. There are fire ordinances that prohibit the storage or use of propane within 10 feet of multi-family dwellings. Therefore, propane cooking should never be permitted upon balconies (except for the rare instances where approved built-in propane grills were installed in original construction).

When common courtesy is utilized by the owners in a condominium building, the owner below checks and sees if the owner above is out enjoying their balcony before they light up their cigar, their cigarette or their electric grill and either waits to light up on the balcony until the upper owner goes in or asks the upper owner if they mind if they come out. Alternatively, the owner below can go smoke outside the front door, use a balcony with no one above or go out on the common elements to light up.

For those few condominium associations where common courtesy is not utilized by some downstairs owners, the association may have to pass house rules or amend the declaration of condominium to impose regulations on smoking. The reason this could become necessary is that a particular owner's excessive smoking or cooking on their balcony could rise to the level of an unreasonable amount of annoyance to be considered a nuisance. Most condominium declarations have provisions prohibiting owners from causing nuisances to other owners or residents, and board of directors, as part of their fiduciary duty to the owners, may have to enforce these nuisance provisions if allegations of nuisance or unreasonable amount of annoyance is made by one owner against another.

Passing a rule or regulation to prohibit outdoor cooking on patios and only allowing such out on designated common areas can be easily done, if necessary. However, crafting language telling owners where and when they can smoke on the condominium property can be difficult.

In Florida, house rules must be reasonable under the law or cannot be enforced. Many smokers will argue that prohibiting them from smoking on "their" patio is unreasonable and a particular judge or jury could easily agree that such a rule is unreasonable. Regulations contained in the declaration of condominium do not have to be reasonable as long as they are not arbitrary, capricious or unconstitutional.

Therefore, if, in a particular condominium, the members vote with the requisite number required to amend their declaration of condominium to prohibit smoking on unit patios, there would be a good chance that a judge or jury would uphold such a regulation because although it may be considered unreasonable, it would most likely not be considered arbitrary, capricious or unconstitutional.

Even if it may be legal to pass regulations prohibiting smoking on unit patios, doing so will probably cause a lot of ill will between owners and should probably only be considered if smoking common courtesy is not working at your condominium.

Rob Samouce, a principal in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

© 2004 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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