AMEND TO YOUR HEART'S CONTENT

By Eric Glazer, Esq.

Published June 11, 2012

As we spoke about yesterday on the Condo Craze and HOAs radio show, a judge in New York denied a condominium association's request to prevent a unit owner from smoking in their unit.   I have often been asked if an association has the right to prevent an owner from smoking in their unit.  Certainly, all of you are aware that the association can prevent a unit owner's behavior from becoming a nuisance or source of annoyance to other unit owners.  If the association can prove that the smell of the smoke is creating a nuisance or that the smoke is causing physical damage to another unit or the common areas, the association would be entitled to an injunction.  Often times however, proving a nuisance is difficult.  How do you prove to a court how bad something smells?  Rest assured the defendant will present witnesses in court saying that there is no terrible smell.  So what's a judge to do?

Can the association's board of directors pass a "rule" that prevents smoking in a unit?  Probably not, as the Board's rulemaking authority normally extends only to use of the common areas.  There's more than one way to skin a cat however.  Suppose the unit owners in the condominium wanted to amend their declaration to preclude smoking in the condominium units?  Would that work?  I certainly think so.

In Woodside Village Condominium Association, Inc. v. Jahren  806 So.2d 452 (Fla. 2002)  The Florida Supreme Court heard the story of a unit owner who owned 4 units in a condominium and who basically lost the ability to rent those units because the unit owners voted to amend their declaration of condominium to only allow a unit to be rented for 9 months in a 12 month period.  Mr. Jahren sued the association alleging that the amendment was illegal.  The Florida Supreme Court ruled however that the amendment was not illegal.  In fact, The Supreme Court made it clear that there are very few restrictions found in the Florida Condominium Act when it comes to amending the declaration and that these are found in 718.110.  For example, pursuant to subsections (4) and (8), all unit owners must consent to amendments which materially alter or modify the size, configuration or appurtenances to the unit, change the percentage by which the unit owner shares the common expenses and owns the common surplus of the condominium, or permit timeshare estates to be created in any unit of the condominium, unless otherwise provided in the declaration as originally recorded.

Moreover, The Florida Supreme Court found that Mr. Jahren was always on notice that the declaration could be amended and that this particular amendment does not violate public policy or his constitutional rights. 

Finally, the court opined that these type of restrictions imposed by the amendment to the declaration "simply come with the unique territory of condominium ownership. Indeed, it is restrictions such as these that distinguish condominium living from rental apartments or single-family residences. Hence, persons acquiring units in condominiums are on constructive notice of the extensive restrictions that go with this unique, and some would say, restrictive, form of residential property ownership and living."

There certainly is no constitutional right to smoke in your home.  There also isn't any provision of the Florida Statutes which would prevent unit owners from amending their declaration to prevent smoking in units.  So again, I say it can be done.  In fact, as The Florida Supreme Court says, unless a unit owner can prove that an amendment violates the current statute, his constitutional rights, or some public policy, the right of the members to amend their declaration is certainly far and wide.