New Jersey, along with many other states, has adopted a Smoke-Free Air Act (the “Act”) that bans smoking tobacco or electronic cigarettes in the workplace and in indoor public places. Most people are aware that this ban extends to restaurants and stores, but the definition of “indoor public place” also includes an “apartment building lobby or other public area in an otherwise private building.” (N.J.S.A. 26:3D-57). Most agree that this definition includes common areas in condominium associations and cooperatives, but banning smoking in common areas is not where the challenge of creating a smoke-free community lies.

Even though a board may ban smoking in common areas, such rules do nothing to stop secondhand smoke in units from filtering into a non-smoker’s unit. This can become a critical quality of life and health issue for the non-smoker next door. According to the Centers for Disease Control and Prevention (CDC), “There is no risk-free level of exposure to secondhand smoke.”[i] The CDC goes on to note that research has shown that exposure to secondhand smoke increases the risk of heart disease, lung cancer, Sudden Infant Death Syndrome (SIDS) and numerous other health risks, especially for children. In other words, secondhand smoke is more than just a nuisance.

The only way to completely eliminate secondhand smoke from homeowners’ living spaces in a condominium or cooperative association is to ban smoking within the units themselves.

Banning Smoking Within Units.

Although, there are no published cases in New Jersey on the enforceability of banning smoking within condominium or cooperative units, case law around the country suggests that the trend is toward upholding these types of smoking restrictions. However, since few boards have the power to establish these rules on their own, the most effective way to enact a rule that bans smoking within units is to amend the association’s bylaws in a condo association or the proprietary lease in a cooperative.

Since the amendment process requires a membership vote, there is an additional benefit – greater acceptance by homeowners, even those that did not vote for the amendment. When a person buys into a condominium or cooperative association, they know – or should know – that the membership is empowered to change the rules. For most people, a change made through a vote of the membership is easier to accept than the vote of a few board members.

Enforcement of Smoking Bans

The biggest obstacle to creating a smoke-free community is enforcing a smoking ban. While voluntary compliance would be a nice fairytale ending to the implementation of such a rule, it is unlikely. Also, boards should remember that the real goal in passing a smoking ban is not to run people’s lives and turn their homes into boot camps. The goal is to protect residents and owners who are concerned about the health effects of secondhand smoke. Focusing on this “goal” is important, as it should guide an association’s enforcement efforts and help them to steer clear of witch hunts for smokers.

Before issuing a violation notice for smoking, there needs to be an eyewitness or “nosewitness” to the smoking. This person should be required to file a complaint that is submitted to the association’s ADR process. If ADR and fines do not result in compliance, an association may choose to sue a smoker.

Although lawsuits are often time consuming and expensive, a case to enforce a smoking ban will likely be a good candidate for a relatively quick summary judgment motion, unless the defendant alleges that s/he does not smoke in their unit.

The best way to enforce any rule is to encourage voluntary compliance. Providing convenient locations for smokers outside of residential building(s) is one option that can help encourage compliance and reduce litter from discarded cigarette butts. These locations could range from a simple smoker’s stand, to actual covered areas away from doors and windows of residential buildings. Designating certain areas for smoking also shows the membership that the association is concerned about all members’ ability to use and enjoy their homes, as long as it does not endanger the health, safety or welfare of other owners or residents.

 

You hated them as a kid. You wish they were no longer necessary as an adult. But in community living, having some rules is a necessity. Many of these rules are established in the process of creating a condominium, homeowners or cooperative association. To change these initial rules, which are most often found in the declaration, master deed, bylaws or proprietary lease, associations must typically obtain a vote of the membership to amend the governing documents.

However, Boards of Trustees are also empowered with certain rule-making authority. Such rules are best adopted via a board resolution, which must be voted on by the board at an open meeting of the membership – whether any members show up to the meeting, or not. Each association may have unique needs that have to be addressed with unique rules, but almost every association can benefit from implementing certain standard rules and regulations.

Rules that May Reduce Increases in Insurance Premiums

Although there is no direct correlation between these rules and an association’s insurance premiums, when associations implement policies that reduce the likelihood of lawsuits and insurance claims – two important factors in determining insurance premiums – there is a strong chance that their future premium increases will be lower. Some of these rules are:

  1. Adopt a board resolution requiring owners to conduct dryer vent and chimney cleanings and inspections at least every two years. This reduces the risk of lint and soot-related fires – fires that could result in increased insurance premiums.
  2. Adopt a board resolution requiring owners to replace water heaters after a specific number of years. Water heaters are generally expected to have useful life of eight to twelve years. Unfortunately, without a rule requiring timely replacement, many people will wait until their water heater malfunctions before replacing it, and water heater malfunctions frequently result in insurance claims for water damage and increased premiums.
  3. Adopt a board resolution requiring owners to install burst resistant washing machine hoses. Along with failed water heaters, leaking or burst washing machine hoses are probably the top causes of insurance claims for water damage in associations. Stop this problem before it happens.
  4. Pass a Tort Immunity Amendment to the Bylaws. This limits an association’s liability for injuries that occur on the association’s property, but it does require at least a two-thirds vote of the membership. The two-thirds requirement is a minimum set by statute, but if the bylaws that are being amended have a higher amendment threshold, then the higher voting percentage will apply.

Rules that May Increase Revenue

Assessments are the financial lifeblood of associations. Unfortunately, over the past five to six years, delinquencies have increased substantially. Some people just do not have the money to pay, but others may simply have put their assessments further down their list of priorities. In order to increase collections and revenue from other sources, associations should consider the following rules:

  1. Adopt a Parking and Towing Resolution. Not only should this resolution contain parking rules, but it can – and should – contain provisions that permit the towing of delinquent unit owners’ vehicles. It is amazing how often a payment plan is proposed after a trip to the vehicle impound. (Of course, it is critical to ensure that all towing is conducted in compliance with the Predatory Towing Prevention Act.)
  2. If an association has the authority to fine unit owners, it should set up a system and schedule of fines for violations of the rules. Ideally, the bylaws permit the board to set the amount of fines, and in such cases, it is possible to establish an escalating system of fines, such as $50 for the first violation, $75 for the second and $100 for the third and subsequent violations. However, it is important to remember that, before these fines can be collected, the member charged with the violation(s) must be given an opportunity to participate in alternative dispute resolution (ADR).
  3. Associations that do not have the authority to assess fines, charge late fees or accelerate assessments should attempt to adopt an amendment to their governing documents to establish these powers. Since these powers must generally be in the bylaws, master deed, proprietary lease or declaration, an amendment is necessary to add them. Without the “teeth” of a fining authority, it is very difficult to enforce rules. Without the ability to charge late fees, it is very difficult to enforce timely payment of assessments, and without the ability to accelerate assessments, associations’ liens and judgments will almost always be less than the amount truly owed within a month.
  4. Adopt a leasing amendment to empower the association to immediately collect the rents of delinquent owners who lease their units. Not only can a leasing amendment allow associations to collect tenants’ rents, but it can also increase associations’ ability to enforce rules against the tenants. If a landlord does not evict his problem tenants, the association can step into his shoes and conduct the eviction – charging the costs back to the landlord.

These lists are just a sampling of the strategies that associations can implement when making rules that can lead to reduced expenses, improved enforcement and increased revenue. We have an expansive fixed fee “menu” of various resolutions we could discuss with the board.