CAN A CONDO PREVENT SMOKING IN A PRIVATE UNIT?

By Eric Glazer, Esq.

Published May 20, 2013

We all know that if we choose to live in a community association in Florida, we will be subject to reasonable rules and regulations.  For example, we may want to take a swim at 2 a.m. but the pool may be off limits at that hour.  We may need permission as to who can rent or buy our unit.  We may be subject to rules regarding the hours of the clubhouse, where we can park, and how many guests we can invite to the gym at one time.  We're used to rules and regulations of this variety that involve use of the common areas.  The question however  is …..can the association prevent you from doing things in your unit, like preventing you from smoking?

Any discussion of just how far an association and its members can go in regulating use of units must start with a case decided by The Florida Supreme Court in 2002 called Woodside Condominium Association v. Jahren.  In Woodside, a unit owner was renting out his units for about 18 years in a row, when the association members passed an amendment to the declaration of condominium which in effect, banned the rental of units.  Jahren and the association wound up in litigation, with the unit owner arguing that it would be unfair to deprive him of the ability to rent after 18 years.

The Florida Supreme Court cited to Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975), to further explain the restrictive nature of condominium ownership and living:

[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

Finding that the amendment did not violate public policy or the owner's constitutional rights, The Florida Supreme Court held that there are very few restrictions to the member's ability to amend their declaration….and restricting the ability to rent was reasonably related to improving the community.

So in light of the Woodside case, it's pretty clear to me that if the owners in a condominium pass an amendment that would prohibit smoking in their unit, that amendment would be valid because there is no constitutional right to smoke in your unit.  Moreover, it's an amendment that is not arbitrary or capricious and on the contrary is designed to promote the health and welfare of the community.

Now before you start worrying about whether or not your condo association can pull a Mayor Bloomberg and stop you from drinking large sodas in your unit or eating greasy cheeseburgers, remember that a court would likely strike down such an amendment because unlike smoke that starts in one unit and enters other units, the act of that one owner in eating unhealthy in his or her unit has no bearing on the health and welfare of the other owners or occupants in the community.