Ask Eli: Condo Smoking Bill Passes in Virginia

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

Answer: Thank you to the ARLnow reader who brought Virginia House Bill 1842 to my attention because it’s likely to be a game-changing law. This bill will allow condo boards to more easily ban smoking inside units and on balconies — not just in common areas. As of Feb. 17, 2021, the bill passed the Virginia House and Senate and, per my conversation with staff of the bill’s sponsor, Delegate Mark Keam, it’s now on its way to the Governor’s desk to become Virginia law as of July 1, 2021.

This is incredible news for many condo owners and residents who have suffered from the health and environmental hazards of a neighbor who smokes inside their unit or on their balcony. Over the years, I’ve written more about condo smoking bans than any other non-market topic because of how much interest and positive feedback I receive on the topic — so much that I hosted a panel discussion about it in 2019.

A full summary of the bill is shared below, but the key text from the bill includes, “…the executive board of a condominium unit owners’ association to establish reasonable rules that restrict smoking in the condominium, including rules that prohibit smoking in the common elements and within units…”

Under current laws, a smoking ban within units can only be done by way of a formal bylaw amendment, which can be overly burdensome for most communities and take years to see through. The only “easy” smoking ban allowed by law was a ban in general common areas. Even limited common areas (e.g. balconies) require a bylaw change under the current laws.

I am no legal expert, and I’m sure the language in the bill can be interpreted a number of different ways, but this bill seems to give condo boards/owners a very good chance of banning smoking within units. I’d love to hear from any readers who have the legal background to interpret just how likely or unlikely the language in this bill is to allow complete smoking bans.

Find details about the bill online, and read the full summary below:

Property Owners’ Association Act; Condominium Act; rulemaking authority of property owners’ associations and unit owners’ associations; smoking. Permits (i) except to the extent that the declaration provides otherwise, the board of directors of a property owners’ association to establish reasonable rules that restrict smoking in the development, including (a) rules that prohibit smoking in the common areas and, (b) for developments that include attached private dwelling units, rules that prohibit smoking within such dwelling units, and (ii) except to the extent that the condominium instruments provide otherwise, the executive board of a condominium unit owners’ association to establish reasonable rules that restrict smoking in the condominium, including rules that prohibit smoking in the common elements and within units. The bill clarifies the authority of executive boards of condominium unit owners’ associations to establish, adopt, and enforce rules and regulations with respect to the use of the common elements of the condominium and with respect to such other areas of responsibility assigned to the unit owners’ association by the condominium instruments, except where expressly reserved by the condominium instruments to the unit owners. The bill also permits unit owners, by a majority of votes cast at a meeting of the unit owners’ association, to repeal or amend any rule or regulation adopted by the executive board. This bill is a recommendation of the Virginia Housing Commission. Property Owners’ Association Act; Condominium Act; rulemaking authority of property owners’ associations and unit owners’ associations; smoking. Permits (i) except to the extent that the declaration provides otherwise, the board of directors of a property owners’ association to establish reasonable rules that restrict smoking in the development, including (a) rules that prohibit smoking in the common areas and, (b) for developments that include attached private dwelling units, rules that prohibit smoking within such dwelling units, and (ii) except to the extent that the condominium instruments provide otherwise, the executive board of a condominium unit owners’ association to establish reasonable rules that restrict smoking in the condominium, including rules that prohibit smoking in the common elements and within units. The bill clarifies the authority of executive boards of condominium unit owners’ associations to establish, adopt, and enforce rules and regulations with respect to the use of the common elements of the condominium and with respect to such other areas of responsibility assigned to the unit owners’ association by the condominium instruments, except where expressly reserved by the condominium instruments to the unit owners. The bill also permits unit owners, by a majority of votes cast at a meeting of the unit owners’ association, to repeal or amend any rule or regulation adopted by the executive board. This bill is a recommendation of the Virginia Housing Commission.

If you’d like a question answered in my weekly column or to set-up an in-person meeting to discuss local Real Estate, please send an email to [email protected]. To read any of my older posts, visit the blog section of my website at www.EliResidential.com. Call me directly at 703-539-2529.

Eli Tucker is a licensed Realtor in Virginia, Washington DC, and Maryland with RLAH Real Estate, 4040 N Fairfax Dr #10C Arlington VA 22203. 703-390-9460.