Common Interest Communities
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Common interest communities consist generally of three types of owner-occupied housing: condominiums, cooperatives and planned communities. These models differ slightly on the method of ownership, and are generally regulated by a state statute on condominiums or common interest communities.
Condominiums account for an increasingly large portion of the residential housing market. Even though condominium buildings are generally newer than other multifamily housing, this does not necessarily mean that secondhand smoke (SHS) is less likely to transfer from one unit to another. Establishment and management of condominiums and common interest communities require more complex legal arrangements than are necessary for rental apartment buildings. The number of parties in disputes regarding SHS in condominiums may be more numerous because of the involvement of property managers and homeowner associations. These factors, along with the element of ownership and marketability of the property, contribute to making solutions to the issue of SHS transfer in common interest communities more complex than for rental apartment units.
Common interest community properties are controlled by governing documents, generally including the declaration or covenants, conditions and restrictions; the by-laws; and the rules and regulations. Smoking policies can be included in the governing documents. The decision on which governing document should be amended to include the policy will depend on many factors, including cost, desired strength of the policy and the likelihood the policy will need to be changed in the future. In situations similar to the adoption of a smoke-free policy, such as the adoption of a pet policy or changes to leasing restrictions, the majority of state courts have upheld changes to the governing documents and allowed the new provisions to be applied against all owners as long as the correct process for amending the documents was followed and as long as the changes are reasonable.
Significant progress has been made in communities across the country in promoting smoke-free policies for multi-unit rental buildings and in public housing authorities. Adoption of smoke-free policies for multi-unit owner-occupied properties has been lagging. Callers with questions regarding smoke-free policies were uninformed as to the experience of other common interest communities with secondhand smoke and were uncertain on the legality of adopting comprehensive smoke-free policies.