Can Condo Boards Regulate Smoking?
An Illinois Condo Association’s Guide to Smoking Rules and Declaration Amendments
As smoking continues to raise health and nuisance concerns among condominium residents, it presents two questions: 1. How can condo boards regulate smoking to reasonably accommodate residents? 2. Can, or should, condo associations restrict or prohibit smoking within their buildings. A recent unpublished decision from the Illinois Appellate Court, Carey v. 400 Condominium Association, 2024 IL App (1st) 230358-U, offers insight into what steps associations must take when enforcing nuisance provisions related to smoking, and whether a declaration amendment (a formal change to an association’s bylaws) is necessary to impose a ban. The ruling reinforces that condominium associations must tread carefully when regulating smoking and underscores that mere subjective complaints are rarely enough to support enforcement or litigation.
Background
In Carey, plaintiffs Reverend Patricia Carey and her husband, Richard Fry, filed suit against the 400 Condominium Association and their neighbor, Helen Dress, claiming that secondhand and thirdhand smoke infiltrated their unit. Carey and Fry alleged that Dress, or her guests, smoked in Unit 3703 and on its balcony, and that the Association failed to investigate or act on their repeated complaints appropriately. The plaintiffs brought two claims: (1) a breach of fiduciary duty claim against the Association for allegedly failing to enforce the building’s rules and protect their unit from smoke infiltration; and (2) a private nuisance claim against Dress for allegedly causing the infiltration of smoke into their unit.
The building’s governing documents permitted smoking within units so long as it did not “create a nuisance or unreasonable disturbance to others.” Smoking was prohibited in common areas. The plaintiffs claimed that the Association ignored its obligation to investigate and remediate the alleged nuisance, and that Dress knowingly allowed smoke to invade their unit.
The trial court entered summary judgment* in favor of the Association and Dress, and the plaintiffs appealed.
*Summary judgement is when a case or claim is resolved in lieu of going to trial.
The Appellate Court’s Decision
The appellate court upheld summary judgment in favor of the defendants, rejecting both claims.
No Breach of Fiduciary Duty
The court held that the Association did not breach its fiduciary duties. The court emphasized that the governing documents permitted in-unit smoking as long as it did not result in a nuisance or unreasonable disturbance. Critically, the plaintiffs failed to present objective evidence that the level of smoke infiltration was “unreasonable” under an objective standard—that is, disturbing to an ordinary, reasonable person.
The plaintiffs’ only evidence consisted of their own deposition testimony, in which they claimed they smelled smoke in their kitchen, hallway, and balcony. They did not provide expert testimony, affidavits from third parties, or medical diagnoses linking smoke to health conditions. The court noted that evidence from building security personnel or a scientific expert could have supported their case, but those individuals were never disclosed as expert witnesses or deposed during discovery.
Furthermore, the court credited the Association’s attempts to respond to the complaints. Management staff investigated the alleged smoke source, spoke to residents, inspected units, and sealed pipe penetrations as a precaution. The court determined these actions were reasonable and did not reflect a failure of fiduciary duty.
No Private Nuisance
As for the claim against Dress, the court held that the plaintiffs could not prove, with any objective evidence, that smoke infiltrated their unit or that Dress, or her guests, were the definitive source. While the plaintiffs submitted photos of individuals on Dress’s balcony appearing to smoke, the court found that this was not enough to show that Dress herself caused the smoke infiltration or rose to the level of a private nuisance.
Key Takeaways for Illinois Condominium Associations
The Carey decision has several practical implications for condominium boards, which help answer the question: how can condo boards regulate smoking reasonably and effectively? The key is in its governing documents and enforcement mechanisms.
1. A Rule May Not Be Enough – Consider a Declaration Amendment
Many condominium associations attempt to regulate smoking through rules and regulations rather than amending their declaration. In Carey, the building’s rules allowed in-unit smoking unless it caused a nuisance. The court’s holding suggests that unless a declaration specifically bans smoking, enforcement will be limited to addressing objectively “unreasonable” disturbances.
Importantly, the court interpreted “unreasonable” as conduct that would disturb an ordinary, reasonable person, not one with heightened sensitivities. Without an outright ban in the declaration, condominium associations are left to interpret vague nuisance language and will face a higher evidentiary burden if enforcement is challenged.
Accordingly, condominium associations that want to prohibit smoking should amend their declaration rather than rely solely on rules. A properly adopted declaration amendment can prohibit smoking outright by removing the ambiguity of “nuisance” and creating clearer enforcement authority.
2. Objective Evidence is Essential to Guide Condo Board Rule Enforcement
The plaintiffs in Carey relied heavily on their statements and personal observations. However, the court made clear that enforcement requires objective proof, whether internally by the board or externally in court. This might include:
- Third-party witness testimony (e.g., neighbors, staff)
- Incident reports from security
- Air quality testing results
- Medical documentation of adverse effects
Without this evidence, nuisance allegations will unlikely survive a motion for summary judgment.
3. Condo Association Boards Are Protected When Acting Reasonably
The court noted that even though the Association did not issue a violation notice against Dress, it acted reasonably by investigating complaints, inspecting units, sealing penetrations, and communicating with residents. Illinois courts continue applying the business judgment rule to board decisions, protecting associations that act in good faith, even if those efforts are unsuccessful.
Condominium associations are not required to guarantee a smoke-free environment unless their governing documents require it. However, condominium associations must make a good-faith effort to investigate and respond to complaints. Documentation of those efforts can be pivotal in defending a breach of fiduciary duty claim.
4. Dealing with Medical Sensitivities Requires a Different Approach
In Carey, one plaintiff alleged that the smoke impacted her health due to a prior thoracotomy. However, she did not obtain a current medical diagnosis or request a reasonable accommodation under the Fair Housing Act. Condominium associations should remain alert to claims of medical harm due to smoking, but should ensure any accommodation requests are properly documented and evaluated under the applicable legal standards.
Should Your Condo Association Amend Its Declaration to Ban Smoking?
If your condominium association wants to prohibit smoking inside the building, the declaration should be amended accordingly. Declarations carry greater legal authority than rules and cannot be overridden by inconsistent rules or policies. While declaration amendments often require a supermajority vote of the unit owners, the effort is worthwhile. Rules alone, as Carey shows, may not be enough to address smoking complaints, especially if courts are looking for objective, quantifiable proof of harm.
Conclusion
The Carey case demonstrates that Illinois condominium associations cannot assume that vague nuisance rules will be enough to enforce a de facto smoking ban. If associations want to ensure compliance and mitigate health complaints from smoke, they should consider adopting an express declaration amendment banning smoking entirely. Moreover, condominium associations must treat complaints seriously by investigating them promptly and documenting all remediation efforts. We hope this has helped you understand how condo boards can regulate smoking and mitigate discord in your community.
At Hirzel Law, PLC, we represent Illinois condominium associations in all aspects of governance, enforcement, and document drafting. If your association is considering a smoking ban or is dealing with smoke complaints from residents, contact our office to learn how we can help you navigate the legal and practical issues.
