The issue of the dangers of second hand smoke in a common interest community has been brought to the forefront recently in several significant ways.  

Recently, a lawsuit related to the effects of second hand smoke in a condominium setting was decided in Massachusetts.  In Burrage v. DeAngelo, et al., a condominium unit owner sued her neighbor, the condominium association and her real estate agent for causing or allowing a hazardous or noxious activity, namely smoking in an adjacent unit.  All but the agent settled with her before trial.  At trial, the Plaintiff claimed that her real estate agent knew of her neighbor’s smoking and the effects of second hand smoke, but failed to disclose that information to her before closing.  The second hand smoke allegedly exacerbated her asthma, causing her significant personal injuries.  In less than an hour, the jury found in favor of the agent and awarded the Plaintiff nothing.  Obviously, real estate brokers and agents must disclose known hazards such as toxic waste sites, flood or fire danger or local industry that may be considered dangerous.  The question here was whether the agent should have disclosed smoking as a hazard, knowing how many people die from second hand smoke each year, yet putting some of the responsibility on the Plaintiff, who could have easily determined during any of the visits to the home that either the prior owners or a neighbor was a smoker.  In fact, the Plaintiff specifically asked the realtor about the smoke smell during one of the visits, clearly indicating that the Plaintiff had prior knowledge of the smoke.  The jury here decided that, rather than adding another layer of disclosure to already burdened Realtors, they would charge the Plaintiff with discovering the dangers of second hand smoke in the unit on her own.  It is unknown at this time if the Plaintiff plans on appealing the decision. 

In Manhattan, two unit owners sued their neighbor for creating a "nuisance" in their luxury Tribeca condominium by smoking.  The suit alleges that even though the condominium bylaws permit smoking in the units, "objectionable odors" are prohibited.  Further, the unit owners had personal experiences of the effects of second hand smoke on children when their young daughter was afflicted with health problems from the smoke.  Recently, a Manhattan Civil Court Judge permitted the suit to go forward, denying a motion to dismiss by the neighbor. 

In British Colombia, Canada, a smoker moved into a Unit situated below two non-smoking unit owners.  The non-smoking owners, claiming that their health was being affected due to the effects of second hand smoke, appealed to their condominium association to adopt a no-smoking policy.  The association refused, claiming that smoking didn’t violate the bylaws, and thus it had no authority to respond to the complaint and force the smoker to stop.   In response, the unit-owners are taking a novel approach and claiming that their sensitivity to smoke is a "disability", and the association’s failure to accommodate their disability violates Canada’s Human Rights Statutes.  The matter is set for a hearing in the next several months and if the non-smokers are victorious, it could force every condominium in Canada to become a non-smoking building, for fear of future litigation caused by the dangers of second hand smoke.  This will not only preclude smokers from buying condominiums, but will severely impact the Association’s ability to sell units, as their pool from which to attract potential buyers would be significantly reduced.  

However, this hardly settles the issue of whether condominium associations in New Jersey can be held liable for unit owners’ participation in a legal activity in the privacy of their own home.  In the absence of a ban on smoking altogether based on the facts about second hand smoke, a condo association has a duty to protect the safety and welfare of its unit owners and to act in best interests of those owners.  It is an open question if that power extends to prohibiting lawful activities that take place within the four walls of a unit.  The Association may only have to provide alternative dispute resolution to the two owners in order to comply with the New Jersey Condominium Act and the Planned Real Estate Development Full Disclosure Act (PREDFDA), but no New Jersey court has decided this issue as of the date of this article.