Secondhand Smoke and Condominiums:
Julie
Research and Legal Context
Making It Better Conference
November 15, 2011
Secondhand Smoke and Condominiums:
Research and Legal Context

Warren Ortland – Introduction and Legal Context

Martha Hewett – Air Movement Study and
Condominium Research
Secondhand Smoke and Condominiums:
Research and Legal Context


Research Project Objectives

Assess secondhand smoke issue and perspectives of
owner-occupants and property managers

Make recommendations for solutions

Develop tools for implementation
Presentation Goals

Provide context; understand extent and severity of issue
and attitudes of affected parties

Provide tools for implementation
ASHRAE Statement
American Society of Heating, Refrigeration and Air-Conditioning
Engineers
2008 Position Statement:
• At present, the only means of effectively
eliminating health risk associated with indoor
exposure is to ban smoking activity.
ASHRAE Position Document on
Environmental Tobacco Smoke
Approved by ASHRAE Board of Directors
June 25, 2008
Surgeon General

The Surgeon General’s Call to Action to Promote Healthy
Homes – June 2009
Secondhand Smoke Transfer
in multi-unit buildings
MN test buildings
8-Plex
1970
Duplex
1930s
12-Plex
1964
MN test buildings
4 story
2001
11 story
1982
138 unit
1999
How much air is transferred?
Air from adjoining units as a
percent of total inflow
Range
Median
 Top-floor
units: 2 to 65%
16%
 Mid-floor units: 1 to 20%
5%
 Lowest-floor units:
1 to 4%
Winter measurements in 6 Minnesota Buildings
Overall average = 5%
2%
How big are the leaks?


Total effective leakage area per apartment
25-130 sq. in. (average 47 sq.in.)
Leakage area to surrounding units
5 to 28 sq. in. (average 9 sq.in.)
Most openings are small or diffuse
Gaps around sink
plumbing
Gaps along baseboard
under carpet
Leaky (2.5 sq. in.)
Tight (0.1 sq. in.)
Light fixtures
Some openings are big!
Why do
our
clothes
smell
like
smoke?
Plumbing access panel removed
Open between
tubs
Pegboard is
not a good air
barrier!
Neighbor’s
bathtub
Hidden high rise chases =
large uncontrolled flows
Hidden chase
openings are
hard to access
What drives air through the leaks?
Winter stack effect
Air outside is
heavier than
air inside
In at the bottom and out the top: taller building = bigger effect
What drives air through the leaks?
Wind
In on the windward side and
out on the leeward side
Taller Building  Bigger Effect
What drives air through the leaks?
Mechanical system effects
Exhaust fan off
(or lower flow)
Exhaust fan on
(or higher flow)
101
102
Pressure difference
draws air into unit 102
How much can you reduce it?

Fairly extensive air sealing (~$700/unit) and
ventilation (~$400/unit) improvements:
 Reduced
contaminant concentrations in nonsmokers’ units
by a median of 29% for a given source strength
 Tenants
reported better but not gone
 Bottom
line: You can reduce it but not eliminate it.
SHS in Condominiums
Owner-occupant survey – preliminary results
Methods

Population
 76,106
SF-detached (townhouses, twin homes…)
 43,152 2-50+ (apartment-style)

Data collection Jan 6 – Mar 6, 2009

Respondent n = 495
SHS transfer: Unit (6 mo)
In past six months, how often has tobacco smoke from
somewhere else in or around the building come into your unit?
Townhouse (n = 225)
Apartment (n = 263)
All (n = 488)
0%
10%
20%
30%
Often or most of time
40%
50%
Sometimes
60%
Rarely
70%
Never
80%
90%
100%
SHS transfer: Deck/balcony (6 mo)
In past six months, how often has tobacco smoke from
somewhere else in or around the building come onto your unit's
patio, deck or balcony?
Townhouse (n = 225)
Apartment (n = 266)
All (n = 491)
0%
10%
20%
Often or most of time
30%
40%
Sometimes
50%
Rarely
60%
Never
70%
80%
Not applicable
90%
100%
SHS transfer: Unit (past week)
In the past week, how many days has tobacco smoke come
into your unit from somewhere else in the building?
Townhouse (n = 226)
Apartment (n = 266)
All (n = 492)
0%
10%
20%
7 days
30%
5 - 6 days
40%
50%
2 - 4 days
60%
1 day
70%
None
80%
90%
100%
Extent bothered: Unit
How much does it bother you when tobacco smoke from
somewhere else in or around the building comes into your unit?
Townhouse (n = 132)
Apartment (n = 147)
All (n = 279)
0%
10%
20%
A lot
30%
Some
40%
A little
50%
60%
Not at all
70%
80%
90%
100%
Extent bothered: Deck/balcony
How much does it bother you when tobacco smoke from
somewhere else in or around the building comes onto your
patio, deck or balcony?
Townhouse (n = 142)
Apartment (n = 153)
All (n = 295)
0%
10%
20%
A lot
30%
Some
40%
A little
50%
60%
Not at all
70%
80%
90%
100%
Sources of SHS transfer
From inside another resident's unit
From another resident's patio, deck or balcony
From another resident's garage
When tobacco smoke
comes into your unit from
somewhere else, where
do you think it comes
from?
From common areas inside bldg
From common areas outside bldg
I don't know where it comes from
0%
Townhouse (n - 226)
5%
10%
Apartment (n - 269)
15%
20%
25%
Current rules: units
What rules does your association currently have about
smoking in… residents' units?
Townhouse (n = 214)
Apartment (n = 258)
All (n = 472)
0%
25%
Smoking is permitted
50%
Smoking is not permitted
75%
Don't know
100%
Preferred rules: units
What rules would you prefer to have about smoking in
residents' units?
Townhouse
(n = 213)
Apartment
(n = 259)
All
(n = 472)
0%
10%
20%
30%
40%
50%
60%
70%
Strongly prefer smoking permitted
Somewhat prefer smoking permitted
No preference
Somewhat prefer smoking not permitted
Strongly prefer smoking not permitted
80%
90%
100%
Current rules: Deck/balcony
What rules does your association currently have about
smoking … [on] residents' patios, decks, balconies?
Townhouse (n = 206)
Apartment (n = 250)
All (n = 456)
0%
25%
Smoking is permitted
50%
Smoking is not permitted
75%
Don't know
100%
Preferred rules: Deck/balcony
What rules would you prefer to have about smoking in [on]
residents' patios/decks/balconies?
Townhouse
(n = 217)
Apartment
(n = 261)
All
(n = 478)
0%
10%
20%
30%
40%
50%
60%
70%
Strongly prefer smoking permitted
Somewhat prefer smoking permitted
No preference
Somewhat prefer smoking not permitted
Strongly prefer smoking not permitted
Not applicable
80%
90%
100%
Purchasing preference
Suppose you were buying a new unit and had a choice between two buildings that were
identical except for their smoking policies. …which building would you choose?
Townhouse
(n = 226)
Apartment
(n = 268)
All
(n = 494)
0%
10%
20%
30%
40%
50%
60%
70%
Definitely would choose the smoking permitted bldg
Probably would choose the smoking permitted bldg
No preference
Probably would choose the no smoking bldg
Definitely would choose the no smoking bldg
80%
90%
100%
Effect of SHS on resale value
How much do you think it would affect the resale value of your
unit if potential buyers knew that tobacco smoke came into it 1
day per week?
Townhouse (n = 220)
Apartment (n = 251)
All (n = 471)
0%
Decrease it a lot
10%
20%
30%
Decrease it some
40%
50%
Decrease it a little
60%
70%
No effect
80%
90%
Don't know
100%
Effect of SHS on purchasing
If you were considering buying a particular unit, would you
still buy it if you found out that tobacco smoke came in 1
day per week?
Townhouse (n = 220)
Apartment (n = 261)
All (n = 481)
0%
25%
No
50%
Yes
Don't Know
75%
100%
Smokers’ cost responsibility
Owners of units where people smoke should be responsible for
the cost of building modifications to reduce the amount of smoke
drifting into other units.
Townhouse (n = 224)
Apartment (n = 268)
All (n = 492)
0%
10%
20%
Strongly disagree
30%
40%
50%
Disagree
Neutral
60%
70%
Agree
80%
90%
100%
Strongly agree
Assoc SF rules units
Associations should have a right to adopt rules prohibiting
smoking in residents’ units.
Townhouse (n = 225)
Apartment (n = 267)
All (n = 492)
0%
10%
20%
Strongly disagree
30%
40%
50%
Disagree
Neutral
60%
70%
Agree
80%
90%
100%
Strongly agree
Grandfathering smokers
If associations adopt “No Smoking” rules, they should
allow smokers who already live in the building to continue
to smoke until they sell their unit or move out.
Townhouse (n = 224)
Apartment (n = 266)
All (n = 490)
0%
10%
20%
Strongly disagree
30%
40%
50%
Disagree
Neutral
60%
70%
Agree
80%
90%
100%
Strongly agree
Seller disclosure
Sellers should be required to disclose how often tobacco
smoke from other units comes into the unit they are selling.
Townhouse (n = 224)
Apartment (n = 265)
All (n = 489)
0%
10%
20%
Strongly disagree
30%
40%
50%
Disagree
Neutral
60%
70%
Agree
80%
90%
100%
Strongly agree
Buyers’ rights
Buyers have a right to know how often tobacco smoke from
other units comes into a unit they are considering buying.
Townhouse (n = 224)
Apartment (n = 268)
All (n = 492)
0%
10%
20%
Strongly disagree
30%
40%
50%
Disagree
Neutral
60%
70%
Agree
80%
90%
100%
Strongly agree
SHS in Condominiums
Decision-maker interviews
Methods
 Sampling
frame of CIC management firms (N = 38)
compiled from:
 Community
Associations Institute
 CIC Midwest
 Minnesota Multi Housing Association
 Manta.com
 17
Respondents (49%)
Respondents’ CICs


Respondents personally manage or supervise the management
of 21% of the CIC units in Minnesota (27,009 out of 128,291).
Respondents manage or supervise the management of 26% of
the CICs that their companies manage. This suggests that
respondents’ companies may manage about 80% of the CIC
units in the state
SHS incursion



Total 126 smoke
incursion problems
since in current position
Average 7.4/resp or
1.2 per respondentyear in position
Apt-style buildings
20% of units, 69% of
problems
Apt-Style
69.0%
SFAttached
30.2%
SFDetached
0.8%
Experience w/ smoke-free CICs


One of the 17 respondents manages one smokefree CIC.
Six other respondents aware of smoke-free CICs in
Minnesota. Most of these knew of 1-3.
Perceived benefits of SF policies
Healthier envt for residents; cleaner envt, cleaner air
Reduce complaints, disagreements, problems w SHS
Reduce maintenance, maint. costs, clogging of filters
Attract "better" buyers
Happier residents; happier non-smoking residents
Increase sale prices; easier to sell unit
0.0%
20.0%
40.0%
60.0%
Concerns about SF policies
Legal ramifications; infringement on smokers' rights;
legal concerns over grandfathering, discriminatory
Loss of buyers, harder to sell, reduced mkt value
Enforcement - legal costs, mgmt time
0.0%
20.0%
40.0%
60.0%
80.0%
Perceived effects of SF policies
How long it would take owners to sell units
How long ... to rent out their units
Legal costs for the CIC
The time required to manage the CIC
Maintenance costs for the CIC
Insurance costs for the CIC
Insurance costs for individual owners
The sale price of units
The rent owners could charge…
0%
10%
Increase
20%
30%
Decrease
40%
50%
60%
Views on smokers’ rights
People should have a right to smoke…
in their own units even if their smoke
sometimes gets into other people's units.
on their patio, deck or balcony even if their
smoke sometimes gets onto other people's
patios, decks or balconies.
in outdoor common areas even if the smoke
bothers some other residents.
0%
Strongly agree
Somewhat agree
20%
Neutral (not read)
40%
Somewhat disagree
60%
Strongly disagree
80%
Views on associations’ rights
Associations should have a right to adopt policies prohibiting smoking…
in residents' units.
on residents' patios, decks and balconies.
in outdoor common areas.
Strongly agree
0%
Somewhat agree
Somewhat disagree
Strongly disagree
20%
40%
60%
Neutral (not read)
Don't know (not read)
80%
Smoke-free policies
For the CICs you manage, would you strongly favor, somewhat favor,
somewhat oppose or strongly oppose adoption of “no smoking” policies for…
All indoor common areas
All individual units
All ind decks, patios, balconies
All outdoor areas [near] entrances
Other specific outdoor areas…
All outdoor common areas
0%
Strongly favor
Somewhat oppose
20%
Somewhat favor
Strongly oppose
40%
60%
80%
100%
Neutral, up to assn, don't know
Smoke-free policies
If one of the
CIC industry
associations
offered a
model smokefree clause…,
would you be
more likely to
encourage
your CICs to
go smokefree, or not?
No more likely
31%
Slightly more
likely
6%
Much more
likely
38%
Somewhat
more likely
25%
Smoke free statutes/ordinances
SHS in Multi-unit Buildings
Legal Considerations
Challenges / Concerns
Property managers /owners

“It will reduce the market for buyers”

“It is discriminatory”

“It will be a nightmare to enforce”

“It will open me up for additional liability”
State & Local Laws
 State Clean Indoor Air Acts:
 Condominium complexes common areas
 Prohibits smoking in indoor public places and places of
employment: sales offices and maintenance areas
 Utah
 Secondhand smoke is a nuisance
 City / Counties (California)
 Prohibits smoking in individual units
Adoption of Smoke Free Policies
Can we do it? Yes
•
Declaration / Bylaws – permit any material
restrictions on use or occupancy of a unit
•
Rules and regulations – regulate the use of the
units, and conduct of unit occupants, which may
jeopardize the health, safety or welfare of other
occupants, which involves noise or other disturbing
activity, or which may damage the common areas
or other units.
Discrimination
• Is it discriminatory to adopt and implement a
smoke-free policy? No
– Not a protected activity or right.
– Not a protected category
– Not a disability
Recommendation: implement policy based on activity
(smoking) and not individual’s status.
Adoption of Smoke Free Policies
What factors should be considered?
•
Support for the policy change by association members
•
Extent of the policy – will it cover common areas, individual units,
specific outdoor areas (pools, recreation areas) or entire property?
•
Likelihood that the association will modify the policy in the future
•
Approach towards existing smoking owners
•
Expectation that the policy will be challenged by some owners
•
Cost
Recommendation: Provide education to all parties and conduct survey
to assess attitudes towards policy
Adoption of Smoke Free Policies
What if we have support for a
strong policy?
•
Adopt the policy by way of a change to the
declaration
Positives
- More likely to withstand a legal challenge
- Courts are deferential to association decisions to amend declaration
- Less likely to be changed if board membership changes
Negatives
- More costly
- Harder to get passed; requires super-majority of association members
Adoption of Smoke Free Policies
What if we want an gradual, incremental adoption?
•
Adopt the policy by way of a change to the rules and regulations
Positives
- Only requires majority vote of the association board
- Less costly to implement
- Easier to adapt over time as needed
Negatives
- Weaker if legally challenged
- Can be easily changed if board membership changes
- “Grandfathering” or other accommodations may be required
Adoption of Smoke Free Policies
Is enforcement an issue?
•
Should be enforced as are other use
restrictions – pets, excessive noise
•
Follow documented procedures for
enforcement or policy may be considered to
have been waived
•
Relatively new issue; only one case
directly addressing the situation
•
“Grandfathering” could pose
enforcement issues
Alternatives to Smoke Free Policies
What are the risks of permitting smoking?
•
Costs for alternative measures,
such as separate ventilation systems
•
Individual actions for nuisance; owner vs.
owner
•
Action to require the board to enforce the
“nuisance” clause in the declaration
•
Disability accommodation request from nonsmoker
Accommodations for Nonsmokers

Federal or state disability statutes

Disability determined on a case-by-case
basis

Accommodations also determined on a
case-by-case basis
o
Modifications permitted to unit
o
Providing outdoor shelter; check on
definition of “common areas”
o
Adoption of a smoke-free policy
Accommodations for Smokers
Would an accommodation be granted to a
mobility limited individual or other disabled
individual allowing him or her to smoke inside?
Probably not
•
“Nexus” between disability and accommodation
•
“Nothing…requires that a dwelling be made
available to an individual whose tenancy would
constitute a direct threat to the health or safety of
other individuals.”
Fair Housing Act, 42 U.S.C. 3604(f)(9).
Public Policy Options
•
Common areas of condominiums
•
Language in condominium statutes that
references smoking as an example of an activity
that can be controlled by the association
•
Language in nuisance statutes
•
Disclosure of smoking policies for condominium
complexes as part of sales process
Interesting Recent Cases
Christiansen v. Heritage Hills 1 Condominium Owners Association
(Colorado)
• Super majority of owners passed smoke-free policy and did not
grandfather existing smoker
•
Court upheld the amendment to the declaration because smoker was on
notice of possibility of change, and all proper procedures were followed
Burrage v. Betty Gibson Associate, Inc. et al (Massachusetts)
•
Owner sued broker, real estate company, homeowners’ association and
individual residents; alleged cover-up of secondhand smoke
•
Residents and homeowners’ association settled; court ruled in favor of
broker and real estate company
Resources Available to Associations
•
Owner-occupant survey results fact
sheet
•
Property manager interviews fact
sheet
•
Legal issues fact sheet
•
Handbook for homeowners’
associations
•
Model language for smoke-free
policy
Contact


Public Health Law Center
http://publichealthlawcenter.org/
Center for Energy and Environment
http://www.mncee.org/
Public dissemination of information relating to this grant was made possible by
Grant Number RC-2008-0044 from ClearWay MinnesotaSM. The contents are
solely the responsibility of the authors and do not necessarily represent the
official views of ClearWay Minnesota.