There is little or no question that secondhand smoke is a carcinogen which poses  a serious cancer risk and can cause other health problems to persons who are  exposed to it. Indeed the 2010 U.S. Surgeon General’s report states unequivocally that “The debate is over, the science is clear, there is no safe level of exposure to  second hand smoke.” Moreover, HUD has expressly encouraged all HUD funded and subsidized properties  to adopt smoke free policies.  

 Over six years ago, the New Jersey Legislature enacted the “New Jersey Smoke Free Air Act” which prohibits smoking in indoor public places, which includes apartment  building lobbies or other public areas in an otherwise private building;  however, this Act does not apply to individual apartment units. Moreover, the Act supersedes any other statute, municipal ordinance and rules or  regulations adopted pursuant to law concerning smoking in an indoor public  place, subject to limited exceptions. However, it does not expressly preempt private restrictions or rules and  regulations of community associations.  

 The Time is Now

 In view of the foregoing, perhaps the time has come for every condominium and  cooperative board to address the problems caused by second hand smoke seeping  from individual apartments into and permeating other units and common areas.  

 While there may be one or more physical remedies for this problem such as (i)  the installation of smoke eaters in the smoker’s apartment, (ii) the upgrading of the common ventilating systems, (iii) the  sealing of fugitive air pathways in the walls of the building, etc., it may be  more practical and economical to consider the elimination of a second hand  smoke problem by enforcement of private nuisance restrictions in the governing  documents and/or the amendment of same to expressly prohibit smoking in  individual units (perhaps with a grandfather clause for existing smokers in  order to obtain their vote).  

 However, absent the express prohibition of smoking within a unit, there may be  other ways to force the issue and achieve the desired result. These other approaches may include: (i) the enforcement of existing rules and regulations prohibiting noxious  (defined in Webster’s Dictionary as “physically harmful or destructive to living beings”), offensive activities, (ii) legal action by unit owners against an association  and/or board for failure to discharge either a statutory or other duty to  protect the health, safety and general welfare of the residents of the building  or (iii) a lawsuit commenced by the board and/or individual unit owners seeking  injunctive relief against the offending smokers if practical remedies such as  the suspension of privileges, the imposition of fines or ADR do not achieve a  positive result.  

 Case Law

 It is important to note that there is no reported case law in New Jersey which  addresses any of these suggested legal approaches in the context of a  prohibition against smoking in a unit. However, several attempts have been made  in the Garden State to prohibit smoking.  

 According to the Newark Star Ledger, in 2004 a homeowner association in Mendham Township voted 9–2 (one owner was absent) to ban smoking in the 12-unit Mendham Knolls condo  complex’s common areas, outside areas and within each unit. The bylaws were amended  after a unit owner claimed the stench from his downstairs neighbor's cigarette  smoke wafted upstairs into his apartment and was so overpowering that it woke  him up in the middle of the night and would cause his throat to become hoarse.  The secondhand smoke was also the source of anxiety for the upstairs resident.  

 The Star Ledger also reported in December 1, 2010, that the Bellmawr Senior  Housing Association followed suit and prohibited smoking in its two building,  130-unit complex in the South Jersey town. When resident’s leases were up for renewal a new clause included a no-smoking policy.  

 Moreover, logic would seem to dictate that in today’s world the health hazard created by secondhand smoke would outweigh the smoker’s individual right to enjoy his or her habit in the privacy of one’s own apartment. Nevertheless, it must be kept in mind that the key to a  successful outcome will be the production of expert testimony as to the  presence of toxins which have been produced by the tobacco smoke and the  potential or actual adverse harm to the health of other residents. Moreover,  any remedial steps taken by the association to physically eliminate or mitigate  the secondhand smoke problem may have a favorable impact upon any court’s decision.  

 Around the Nation

 There have been a number of instances around the country related to questions of  secondhand smoke in apartment buildings and a number of public housing  authorities have adopted policies banning smoking inside apartment units. As of  January 2012, at least 250 local housing authorities throughout the U.S. had  adopted smoke-free policies for some or all of their apartment buildings. The  latest is the public housing authority in Boston, Massachusetts that will in  September 2012 adopt no-smoking policy for all their housing units.  

 Although housing administrators and judicial case law recognize a right to  prohibit smoking, only one state has expressly created such a right by statute.  Utah’s state law permits landlords to prohibit smoking within an apartment unit by  incorporating such a clause in the lease.  

 Moreover, the Utah Condominium Ownership Act and the Utah Community Association  Act respectively allow a condominium or community association to develop  covenants and restrictions that prohibit smoking on the site. Whether an  association that had previously permitted smoking in individual units could  subsequently vote to prohibit smoking in the entire condominium complex without  any special “grandfather” exclusions for the units of smokers is subject to debate.  

 The health risks are not the only reason housing authorities are considering  smoking bans. There are expenses associated with maintaining units belonging to  those that smoke. “Property owners can save between $500 and $5,000 per unit at turnover. Allowing  smoking in a building damages and can ruin carpets, laminates, walls,  appliances, and furniture. Where smoking is allowed, there is potential for  costly damages to a property. The expenses associated with making these  necessary repairs are prohibitive for most property owners and remedied by  simply barring smoking in the building,” according to Tina Pettingill, founder of the Smoke-Free Housing Coalition of  Maine.  

 Conclusion

 It must be clearly understood, however, that absence of any reported judicial  precedent in New Jersey dealing with this issue makes the legal outcome of any  lawsuit uncertain. Accordingly, it is imperative that any association or individual seeking to  address the problem of secondhand smoke emanating from a neighbor’s apartment explore in depth with their attorney as to how best to proceed given  the particular circumstances, relevant governing document provisions and  applicable law as well as the chance for success.    

 Wendell A. Smith, Esq. is a partner in the real estate department and a member  of the community association practice group at Greenbaum Rowe Smith & Davis, LLP in Woodbridge. He also is a co-author of New Jersey Condominium and  Community Association Law.