Q As property manager for a 36-unit condominium, we have received complaints about smoke emanating from a downstairs unit to an upstairs unit and common area hallway. There has been an ongoing feud for several years now between the upstairs unit owner and the downstairs unit owner. The upstairs unit owner is leaving the common area front door open to alleviate the smell of smoke. The bylaws do not state anything specifically about cigar or cigarette smoke. The bylaws on “odors” reads as follows:

“No unit owner shall make, cause, or permit any unusual, disturbing, or objectionable noise or odors to be produced or to emanate from his or her unit or its appurtenant limited common elements or permit anything to be done therein that will interfere with the rights, comforts, or conveniences of other unit owners.”

We realize that some new condominiums are deemed “non smoking,” however this condominium was built in 1968 and the bylaws were written in 1981 and are vague. If in fact, the bylaws deem cigarette smoke as an objectionable odor, what measures can the board of directors take to enforce this? Are they allowed to “not permit cigarette smoking” in an owner’s unit? The upstairs unit owner now has their condo up for sale; however, the next owner will undoubtedly have the same problem if they themselves are not smokers.

—Caught in the Middle

A “Particularly when considering the hazards of secondhand smoke and the statutory guidance provided in the Smoke Free Illinois Act,” says attorney James Erwin of the Chicago-based law firm of Erwin & Associates, LLC, “an Illinois condominium or common interest community association clearly has the right to regulate nuisances, including excessive smoke and smoking odors, even within an owner’s unit. This can be done through varying levels of regulation. In your case, the most definitive form of regulation would be for the association to amend its declaration to make the entire building a smoke-free zone, including inside units and in common and limited common element areas. In order to accomplish this, the board would have to put a proposed amendment to a vote of the ownership and would have to achieve the majority or supermajority approval required by the declaration. Although this may be a tough sell, it has been implemented by more than one association in Chicago and the surrounding suburbs.

“The association could also attempt to address the problem through promulgation of rules and regulations governing smoking in the units and/or common areas. The more restrictive the rules, however, the more likely they are to be challenged by owners that smoke. And since rules are passed merely by board vote, they are far more susceptible to legal challenge. If the rule is deemed an unreasonable restraint on use and enjoyment of one’s residence, it will be struck down by a court.

“The association can also implement rules which, instead of focusing on limitations on the smoking itself, focus on requiring owners that smoke to take various steps to eliminate or mitigate the transmission of their smoke out of their units into other units and common elements. These can include such proactive measures as sealing certain openings in a unit and installing special fans, ducts and air purifiers.

“Finally, given the “odors” provision you quoted from your bylaws, the association can also fine the downstairs unit owner if the board determines that the smoke that is being transmitted from that unit amounts to what would reasonably be viewed as an annoyance by the average resident.”