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Where can homeowners' associations ban smoking?

For many nonsmokers, the smell of cigarette smoke, even from a distance, can be highly unpleasant and even nauseating. For those with respiratory ailments, it can be particularly problematic. Many homeowners' associations (HOAs) for condominiums and townhomes where residents live in close proximity to one another face complaints from residents about neighbors' smoking. However, to what degree can HOAs regulate it?

Florida associations are allowed to ban smoking in all common outdoor areas (also known as common elements), including tennis courts, pools, play areas and dog walking paths, as well as those covered under the Florida Clean Air Act. HOAs can also restrict smoking on units' balconies (which are considered limited common elements) and in indoor common areas, such as hallways. The restrictions must be reasonable and the HOA's ownership rights to these areas need to be spelled out in its declaration.

It's more complicated to forbid smoking within individual units, because the HOA doesn't own them. One option is to specifically include smoking in the "nuisance" clause of your declaration. If it's not listed as a nuisance in this clause, homeowners who have been told not to smoke in their units will likely prevail if they take legal action.

If your HOA wishes to amend your nuisance clause to include smoking, you should seek the guidance of an experienced Florida attorney who can help you determine whether such an amendment can be made and, if so, how it needs to be worded. Of course, it's always important to weigh the nuisance factor for some residents against the rights of others to engage in legal activity within their own homes.

Source: TCPalm, "How far can condominium board go in regulating smoking?," Harris B. Katz, Feb. 11, 2018

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