Am I allowed to smoke in my own condo?

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Am I allowed to smoke in my own condo?

I own my own condo, and I have always smoked in it (for many years). A condo above mine is a rental. The tenant, who moved in last month, is allergic to cigarette smoke, and is complaining that our smoke is infiltrating her condo. The landlord has asked my roommate and I to stop smoking in our condo. It would be difficult for us to smoke outside, as my roommate is agoraphobic, and I am recovering from hip replacement surgery, also I am about to have a knee replacement. Since I have to climb a flight of 14 steps to go outside, it would not be feasible for me to smoke outside only at this time. I surely would not have bought this condominium if I had thought I might not be able to smoke in my own home. The landlord of the other unit is threatening to sue me. What rights do I have in this situation, and what actions should I take? Am I responsible for my cigarette smoke infiltrating a neighboring unit?

Asked on September 14, 2010 under Real Estate Law, Pennsylvania

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

What do your condo rules or what does the declaration state as to smoking?  If it does not state that the condo is smoke free then you have a right to smoke in your condo. However, you do not have a right to interfere with the other owners - or their renters - right to enjoy their unit either.  This is a delicate balancing act and be aware that the scales could tip in their favor should the condo association choose to amend the declaration to prohibit the smoking.  Many states have held such an amendment to be reasonable. 

Anyone who buys a unit accepts the risk that the power of the unit owners to change the rules may be used in a way that benefits the community but harms the individual.

In other words, if you own property in a community association, you are bound not only by the existing rules and regulations but also by any new procedure that is legitimately enacted by the required majority of the owners. So beware: things may indeed change there.  Maybe try and appease the owner and put in a ventilation unit that sucks the air from the cigarettes?  Good luck.


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