The battle between smokers and non-smokers has been raging for the better part of two decades, and it seems that the non-smokers have all but won. Boards are introducing new clauses in proprietary leases, or bylaw amendments, prohibiting smoking completely – and not just in common areas. While the prevailing belief is that we can do whatever we wish inside of our own homes (so long as it’s legal), reality does not match up. As has been addressed in previous posts on this blog, coop boards have a wide breadth of power when it comes to restricting shareholder’s activities, even within each individual unit. It is each building’s board, not the unit owner/shareholder that truly is the “king of the castle.” It’s becoming more and more common for boards to restrict smoking in every part of their buildings. Those initiatives are attracting considerably more support and considerably less opposition than they have in the past, especially as second hand smoke has been labeled a carcinogen. After all, a building can and should limit residents’ exposure to toxic substances.
The most effective method of effecting a ban on smoking in buildings is to amend the proprietary lease to include an explicit ban. Depending on your building’s bylaws, a supermajority vote may be required, but with the war on smoking all but over and won, a supermajority on this issue is not relatively difficult to achieve, with the national rate of smokers having fallen below 20 percent, and the dangers of second hand smoke being widely known and accepted. A proprietary lease amendment may be preferred by your board because as a contractual provision, it provides a more secure ban with less vulnerability to court challenges than a simple “nuisance” clause. While the courts remain reluctant to restrict what individuals can do within their own homes, they are less likely to challenge a policy approved by a supermajority of owners than one imposed by the community’s elected board.