Ask Eli: Banning Smoking in Condos, Part I

This regularly-scheduled sponsored Q&A column is written by Eli Tucker, Arlington-based Realtor and Rosslyn resident. Please submit your questions to him via email for response in future columns. Enjoy!

Question: Is there anything I can do about smoking in my condo? When my neighbors smoke, there is a strong cigarette odor in the hallway and inside my unit. Unfortunately, the building manager and the Board are reticent to do anything about it and say that they can’t tell people to stop smoking under the current bylaws.

Answer: I’m on the Board for the 1800 Wilson condos in Rosslyn and we’ve been exploring a smoking ban since our 2015 annual meeting. We’ve begun crafting a plan, but haven’t implemented anything to-date, hence the “Part 1.” I plan to write a second column to share our experience as we move through the process of establishing a cleaner home for our residents.

Arlingtonians Do Not Smoke

As of the 2012 census, only 11.8% of men and 10.2% of women in Arlington smoked, compared to national averages of 22.2% of men and 17.9% of women. Arlington also saw the 2nd sharpest decline of male smokers in the country, just behind Falls Church. The CDC currently reports that only 9.8% of adults in Arlington smoke.

Ban Smoking, Improve Property Value

I’d argue that establishing your building as a smoke-free community will improve property value over time because it appeals to approximately 90% of the local adult population and sets you apart from other communities. Consider how much more valuable a smoke-free building becomes to groups like families, those who suffer from asthma, and homeowners with a sensitive sense of smell.

Another factor in improved value is that homes that have been smoked in are often more difficult to sell and sell for less because of the lingering scent. The value of your home/community is heavily influenced by past sales, so anything that causes a home in your community to sell for less and/or take longer to sell will hinder growth.

Types of Bans

Common Areas: In most cases, Boards should easily be able to ban smoking from common areas like courtyards, pools, and rooftop decks. The management of common elements is at the discretion of the Board and can be handled via changes to the Rules & Regulations, without requiring a vote by the owners.

Total Ban: A full smoking ban would include banning smoking from individual units and/or Limited Common Elements (e.g. private balconies) and is a much more difficult task in an established community. Per the advice of the 1800 Wilson legal advisor at Whiteford, Taylor & Preston, a total ban requires a change to the by laws, which usually requires a two-thirds affirmative vote from the owners (a non-vote counts as a no-vote). They also advised that, if the by-law change were to pass, current owners should be grandfathered into the original by-laws allowing them to smoke in their unit and Limited Common Elements.

Other Quick Tips

• There is not any case law in Virginia that establishes smoking as a nuisance, making a successful lawsuit against your neighbor or Association unlikely.
• Communities that explore a smoking ban should work to find a convenient, safe place for owners and their guests to smoke, but one that is not directly underneath the windows of other units.
• Smokers are not a protected class.
• There are special vent filters and door seals that smokers can use to contain scent to their own unit.

I would love to hear from other Arlingtonians who live in buildings that have also dealt with this topic, either successfully or unsuccessfully.

If you’d like a question answered in my weekly column, please send an email to [email protected]. To read any of my older posts, visit the blog section of my website at http://www.RealtyDCMetro.com.

Eli Tucker is a licensed Realtor in Virginia, Washington DC, and Maryland with Real Living At Home, 2420 Wilson Blvd #101 Arlington, VA 22201, (202) 518-8781.