A Guide to
No-Smoking Policies for
COMMUNITY ASSOCIATION
Board Members, Managers, Attorneys, and
Condominium Developers
This toolkit contains:
Financial Benefits
Legal Questions
Steps to Adopt a No-Smoking Rule
Sample Resident Letter and Survey Questions
Sample Legal Language – Oregon and Washington Versions:
Resolution to Prohibit Smoking in Common Areas
Amendment to Bylaws for Condo Associations
Amendment to Declaration of CCRs for HOAs
Slides for CAI and OWCAM
Find these resources and more at www.smokefreehousinginfo.com/condos
This information provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority, AND Clark County Public Health,
Find this and other tools at www.caioregon.org (member services/resource center/helpful tools…)
F i n a n c i a l b e n e f its
f or C ommunity A ssociations
No Smoking Ru l e s
Increased Demand
As fewer people smoke and as the public becomes more aware of the adverse health effects of
secondhand smoke, demand for smokefree housing increases. 91% of Oregon adults say no one is
allowed to smoke anywhere inside their home (even 69% of smokers say this!)1 94% of Washington
adults do not allow smoking anywhere in their home; more than three-fourths (76%!) of Washington
adults who smoke do not allow smoking in their home.2
Smells Don’t Sell
Odors can offend and turn away ready buyers. Real estate brokers have reported that
properties that smell of smoke take longer to sell and often sell at a lower price.
Save Money
Dealing with damages from cigarettes and picking up butts cost the homeowners
association and ultimately the owners, money. Mitigation strategies such as filler shields,
gaskets under electrical plates, duct audits, etc., can be pricey.
Fire Hazards
Between 2005 and 2009, smoking caused $20 million in property loss in Oregon alone.
Cigarettes are the top cause of residential fire deaths in Oregon and Washington and the
leading cause of outside home fires, many of which become structure fires. 3, 4
Possible Insurance Discounts
Some insurance companies are offering discounts. Shop around and talk to your broker. An insurance
company may discount general liability insurance premiums if a no-smoking rule is established.
Why? No-smoking rules reduce the risk of fire-related property damage, injury, and death.
Avoid Legal Risk
Nuisance claims and reasonable accommodation requests can be avoided or met by implementing
a no-smoking rule. Two primary legal challenges may arise by continuing to allow smoking: a
resident could sue either the association or the smoking owner claiming a nuisance. If the resident
has a health condition that is affected by exposure to secondhand smoke, he or she could seek relief
using one of the disability statutes. If the courts find the condition is a disability, then the resident is
entitled to a reasonable accommodation, which could include imposition of a no-smoking rule.
This information provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority, and Clark County Public Health.
1. http://public.health.oregon.gov/PreventionWellness/TobaccoPrevention/Documents/tobfacts.pdf
2. http://www.doh.wa.gov/tobacco/data_evaluation/Data/data_summaries/TobFacts-Contr.pdf
3. http://www.oregon.gov/OSP/SFM/docs/Data_Services/Reports/2005-2009_Oregon_Cigarette_Fires_in_Single-And_Multi-Family_Housing.pdf
4. http://www.wsp.wa.gov/fire/firemars.htm
1.
2.
3.
4.
5.
6.
Find this and other tools at www.caioregon.org (member services/resource center/helpful tools…)
Overview
Residents of multi-unit dwellings are becoming increasingly aware of the secondhand smoke that
drifts into their individual units. The dangers of secondhand smoke are conclusive1. This fact
sheet addresses some of the legal-related questions that may arise when community associations
consider adopting no-smoking rules.
How do Oregon and Washington state laws address smoking in multi-unit buildings?
Under Oregon and Washington state laws, smoking is prohibited in most public places and
workplaces. Public place means any enclosed area open to the public. Workplace means every
enclosed area under the control of a public or private employer where employees frequent during
the course of their regular duties. This could be lobbies, hallways, community rooms, etc.
In addition, smoking is prohibited near ALL business entrances, exits, operable windows and air
intake vents (within 10 feet in Oregon and 25 feet in Washington.)
Are there any legal barriers to adopting a no smoking rule for community associations?
Federal and state laws allow private property owners and associations to adopt no-smoking rules
for all parts of their property, including individual residential units.
Is prohibiting smoking discriminatory in any way?
No. Smoking is not a protected right or activity. Also, an individual’s status as a smoker is not a
protected category of persons. Legal protections are generally limited to categories of persons
that are considered to be innate (inherited) and immutable (unchangeable) and courts have found
that being a smoker does not meet those criteria. Attempts by smokers to be considered disabled
due to an addiction to nicotine have not been successful, so smokers do not receive protection
under state or federal disability statutes.
What risks does an association face by continuing to allow smoking?
If an association allows smoking, two primary legal challenges may arise. First, a resident could sue
either the association or the offending resident on nuisance grounds. Most association declarations
contain a generic nuisance clause stating that an owner (or resident) cannot engage in an activity
that affects the use and enjoyment of another owner’s property. A resident bothered by secondhand
smoke could bring an action against the association to enforce this provision of the declaration.
This same resident could also pursue a nuisance action against the offending owner.
Provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority, and Clark County Public Health.
Thanks to Minnesota’s Live Smokefree and the Public Health Law Center for generously sharing their materials for adaptation.
FOR COMMUNITY ASSOCIATIONS
NO SMO K ING R U L E S
L E G A L Q U E S T I O N S
Second, if an individual has a serious health condition that is affected by exposure to
secondhand smoke, he or she may be able to get some relief by using one of the disability
statutes. If the courts find that the condition is a disability, then the resident is entitled to a
reasonable accommodation, which could include imposition of a no-smoking rule.
Consult your attorney about how to adopt a no-smoking rule. There are a number
of ways this can be done:
• Amendment to Declaration
• Amendment to Bylaws
• Board rule or resolution
A change to the declaration is more difficult and costly to pass, but it will be given deference
by the courts and be stronger against legal challenges. A new rule and regulation is easier
to implement and change, but is also more susceptible to challenges. When choosing which
method to use, consider:
• Whether the adopted restriction will be enforceable in court
• The scope of the prohibition
• Physical characteristics and location of community
Note: Currently, there is no Oregon or Washington law (statutory or case law) regarding
the ability of a community association to prohibit smoking inside a condominium unit; it
has not yet been tested in court. There was, however, a case in Colorado2 where the court
upheld a no-smoking amendment, finding it “reasonable, made in good faith and not arbitrary
or capricious.”
Is it difficult to enforce a no-smoking rule?
A no-smoking rule should be enforced as the association would enforce any other rule.
In both Oregon and Washington, most adults do not smoke. Conducting a survey of
your association residents may help you foresee potential problems with enforcement.
From the experience of rental properties and condominiums that have already adopted
no-smoking rules, they tend to be self-enforcing and do not require a substantial or unique
amount of effort to enforce.
Can the policy be enforced with current residents who smoke?
Most likely, yes. As long as the homeowners’ association follows community association
state law and any requirements in their governing documents for amending the declaration
or changing the rules and regulations, the courts should support the association in
enforcing the rule. In the Colorado case the court upheld the amendment and forced
the resident to comply.
1. www.surgeongeneral.gov/library/secondhandsmoke/report/executivesummary.pdfii http://www.hoalegislate.com/archives/05258030.pdf
2. http://www.hoalegislate.com/archives/05258030.pdf
steps to adopt a no-smoking rule
Step 1: Constructing your no-smoking rule
Choose the vehicle for rule change: Familiarize yourself with, and talk to your attorney about,
the different methods of adopting a no-smoking rule for your community association. These include:
• Amendment to Declaration
• Amendment to Bylaws
• Board resolution
Define smoking: “Carrying, burning, or otherwise handling or controlling any lit or smoldering
product containing tobacco, including but not limited to cigarettes, cigars or pipes.”
Where will rule the rule apply? Think about where you want to prohibit smoking on the property:
• Indoor common areas (lobby, hallways, community rooms, etc.)
• Outdoor general common areas (trails, playground, parking lot, etc.)
• Outdoor exclusive use common areas (balconies, porches, patios, etc.)
• Outdoors within a certain distance from the buildings (such as 25 feet)
• Inside units
• Everywhere on the property, inside and outside
Given that smoke drifts everywhere, consider the effect that a no-smoking rule in one area may
have on other areas. Where smoking occurs, even outside, can make a difference to residents
who either have to pass through the smoke or who live near a common smoking area. For
example, if you prohibit smoking in individual units, more people begin to smoke on their balconies
and patios. If you prohibit smoking on patios, they may start smoking outside building entrances
and in other outdoor locations.
Potential solutions include extending the rule to include a certain distance from entrances, exits,
operable windows and air intake vents or designating an outdoor smoking area located where
smoke is unlikely to affect other residents.
When will the rule go into effect? Allow time to gather owner input and to educate residents.
A rule going into effect in the warmer months may increase compliance because it gives
residents a chance to get used to smoking outside.
Use the general nuisance clause: The community association’s general rule against
nuisances in the declaration or CC&Rs should be reaffirmed.
Find this and other tools at www.caioregon.org (member services/resource center/helpful tools…)
Provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority, and Clark County Public Health.
Thanks to Minnesota’s Live Smoke Free, the Public Health Law Center, and The Massachusetts Smoke-Free Housing Project for generously sharing their materials.
for Community A sso c iations
No Smoking Ru l e s
How will the rule be enforced? The no-smoking rule should state how it will be
enforced, what the fine will be for infractions, and that board members have an
obligation to ensure the rule is followed. Reference your enforcement provisions
for how violations of other community association rules such as no pets, no loud music
or improper garbage disposal are addressed. All rules must be needed, fair, uniformly
enforceable, and penalties must relate to the severity of the violation.
Step 2: Getting resident input
Consider doing a resident survey to assess and demonstrate support for the rule change
See Sample Resident Letter and Sample Survey Questions at www.caioregon.org
(member services/resource center/helpful tools…). A survey gives owners an opportunity
to voice their opinions, and it acts as a preliminary “vote”. Results from this will
demonstrate support and may uncover areas that need special attention before moving
forward. It will make residents feel included in the process and may decrease opposition.
Step 3: Educating owners
Since a vote of a super-majority of unit owners will likely be needed to enact the rule
change, it is very important to take time to educate owners about the many benefits of a
no-smoking rule. Share results of the resident survey to demonstrate community support.
This could be done through newsletter articles, notices on your website, flyers in
newspaper tubes or door slots, signs in a lobby, etc.
Consider designating a special task force to plan educational outreach and help with
the process of determining what the actual rule will include.
Step 4: Voting on the proposed rule
Take advantage of multiple communication channels to promote voting on this issue.
This could include letters to owners, newsletter articles, web notices and even signs
throughout the community. Since it may be difficult to obtain the required number of
votes in a fixed time period (due to owner absence, etc.), you might leave the voting
open until a quorum is reached. Consider knocking on doors and collecting proxies.
Step 5: Implementing the no-smoking rule
For common areas: Make sure the building and grounds comply with state law and
that no-smoking signs are posted. Under Oregon and Washington state law, smoking is
prohibited in most public places and workplaces. Public place means any enclosed area
open to the public. Workplace means every enclosed area under the control of a public
or private employer where employees frequent during the course of their regular duties
(lobbies, hallways, community or laundry rooms, etc). In addition, smoking is prohibited
near ALL entrances, exits, operable windows and air intake vents (within 10 feet in
Oregon and 25 feet in Washington).
Since community association boards generally have the authority to establish rules for
common areas, you will be able to do this right away. Check the declaration or CC&Rs.
All it may take is a vote of the majority of board members at a meeting where a quorum is
present. Once a common area no-smoking rule is enacted, the board must give unit
owners notice of the rule change before implementing. The notice should state where
smoking will be prohibited and when the rule becomes effective.
If, as in many buildings, smoking is not permitted in the enclosed common areas of your
building, your next step is to implement a rule change for those common areas that are
not enclosed such as fire escapes, decks, patios, exterior landings, front steps and the
surrounding grounds. Because secondhand smoke often drifts from these locations back
inside the building through doors and windows, it may become necessary to prohibit
smoking in these areas. If a smoking area is designated, it should be far from any
entrance or other area where the smoke might drift back into the building.
It is advisable to record a bylaw amendment for common area rules because it
automatically provides notice to all unit owners of the rule change.
For the entire property: A no-smoking rule that restricts smoking in individual units
probably requires an amendment of the community association‘s bylaws found in the
declaration or CC&Rs. Enacting the rule will require a vote of unit owners; likely, a
super-majority (75% to 95%) will be needed. Consult your own community association
documents for specifics. Although you may enjoy the support of all owners, it is possible
you will meet with some resistance. That is why it is critical to conduct a resident survey
to gain support for the rule and educate owners about benefits.
Step 6: Enforcing the no-smoking rule
No-smoking rules are largely self-enforcing. Once the rule is established, you are likely
to attract new owners who support no-smoking rules. Here are some tips:
Inform owners: Start by mailing each resident a copy of the rule change or bylaw
amendment as soon as the amendment has passed.
Post no-smoking signs: Put them at the entrance, hallways and other conspicuous
areas. If you find someone smoking in an area where it is prohibited, post a no-smoking
sign there too.
Remove ashtrays and clean up cigarette butts: These items give the impression it is a
smoking area.
Repair cigarette damage in common areas: If these areas have cigarette burns and
smell like smoke, building residents may be inclined to ignore the no-smoking rule. Replace
or patch carpet, floors or other surfaces that have cigarette burns, paint smoke-stained
walls and ceilings, and take other steps to reduce the odor of stale tobacco smoke.
Respond promptly to resident complaints of smoking: Ask those who complain to
document when and from where the smoke likely originated. Follow-up with enforcement
in a timely fashion.
Be consistent: Taking the same steps in the same time period for every rule violation
sends a clear message to everyone that smoking is not allowed. Likewise, treat violations
of the no-smoking rule in the same way you respond to other rule violations such as loud
noise or inappropriate garbage disposal.
Alert owners: Make owners aware they could be held financially responsible for violations
on the premises and that the rule applies to everyone, including guests and tenants.
Sample Resident Letter about No-Smoking Rule
Date
Dear Residents,
We are pleased you have chosen to reside at [name of building/property]. The [name
of management company of building/property] have been studying changes that are
occurring in condominiums, town homes and cooperatives throughout the country and
finding that many are deciding to regulate smoking within their properties.
We are considering adopting a no-smoking policy for [our building and individual units;
outside within a certain distance; entire property] for a number of reasons:
1. To provide a safe and healthy place to live: Secondhand smoke is a serious
health hazard. Studies have shown that tobacco smoke can travel from the end
of lit cigarettes to all other areas of a building. It can travel through the
plumbing, electrical system, through cabinets and closets, ceiling fans,
fireplaces, ventilation systems, under doors and through holes in the wall.
When residents smoke outside on patios, balconies, and in courtyards, the
smoke can enter through windows and doors, even when they are closed.
2. To reduce fire risks: Cigarettes are the top cause of residential fire-deaths in
Oregon and Washington and the leading cause of outside home fires, many of
which become structure fires1
,
2
.
3. To keep property values high: 91% of Oregonians prefer housing where smoking is
not allowed (even 69% of smokers don’t smoke in their own homes3
.) 94% of
Washingtonians say that no one is allowed to smoke inside their home (76% of smokers
in Washington say this)4
. Today, homes that smell like smoke are at a distinct
disadvantage in the market.
We would like to hear from you about these proposed changes! Please fill out the
short survey on the following page and return it to [name of office, etc.]
Sincerely,
[Manager’s/Board member’s name]
1 http://www.oregon.gov/OSP/SFM/docs/Data_Services/Reports/2005-2009_Oregon_Cigarette_Fires_in_SingleAnd_Multi-Family_Housing.pdf
2 http://www.wsp.wa.gov/fire/firemars.htm
3 http://public.health.oregon.gov/PreventionWellness/TobaccoPrevention/Documents/tobfacts.pdf 4 http://www.doh.wa.gov/tobacco/data_evaluation/Data/data_summaries/TobFacts-Contr.pdf
Provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority,
and Clark County Public Health
Find this and other tools at www.caioregon.org (member services/resource center/helpful tools…)
Sample Resident Survey Questions
1. Does anyone in your household smoke, every day, some days or not at all?
No one smokes in our household
Yes, I smoke
some days
every day
Yes, someone else smokes
some days
every day
2. Have you smelled tobacco smoke in your home that comes from another condo or
from outside?
Yes
No
3. Would you prefer to live in a community association where smoking is prohibited
in the following areas:
Check all that apply.
Indoor common areas (lobby, hallways, community rooms, etc)
Outdoor general common areas (trails, playground, parking lot, etc)
Outdoor exclusive use common areas (balconies, porches, patios, etc)
Outdoors within a certain distance from the buildings (such as 25 feet)
Inside units
Everywhere on the property, inside and outside
4. Do you feel that implementing a no-smoking rule would:
Lower maintenance costs for outdoor common areas (litter, etc)
Reduce maintenance costs for indoor common areas (smoke damage and
cigarette burns)
Decrease the risk of homes destroyed by cigarette-caused fires
Avoid the risk of lawsuit to the HOA
Keep property values high
Comments:
Please return your completed survey in the enclosed envelope by [date].
2a. If yes, does smelling tobacco
smoke in your home bother you?
1
Yes
2
No
Provided by the Oregon Smokefree Housing Project, funded by the Oregon Health Authority,
and Clark County Public Health
Find this and other tools at www.caioregon.org (member services/resource center/helpful tools…)
Resolution – Oregon Version
Materials are for general education purposes, and do not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA
RESOLUTION TO PROHIBIT SMOKING IN COMMON AREAS
This Resolution was adopted by the Board of Directors of _________________ Owners
Association at is regularly scheduled meeting held on ___________, 20__.
From time to time, the Association’s Board of Directors has received complaints from residents
who have encountered second-hand tobacco smoke while using the common areas within the
Association. Tobacco smoke, including second-hand tobacco smoke is a known carcinogen. In
addition, the Board of Directors believes that the large majority of residents in the community find the
smell of tobacco smoke objectionable.
Section ___ of the Association’s _______________ [Declaration or Bylaws] authorize the
Board of Directors to adopt reasonable rules and regulations regulating the use of the Association’s
common areas.
IT IS HEREBY RESOLVED, that the Board of Directors hereby adopts the following rule,
which shall become a part of the Association’s Rules and Regulations, enforceable in like manner with
all other Rules and Regulations:
Section ___. Smoking Prohibited in Certain Areas. Smoking is prohibited
on all common areas of the _____________ community, whether indoors or outdoors.
Without limiting the generality of the foregoing, this prohibition applies to
____________________________ [Here, list your association’s common areas, such as
recreation buildings / swimming pool / walking paths / bike paths / gardens / landscaped
common areas / hallways / elevators / the general common element patio / deck /
parking garage / plaza / roof, etc.] Smoking is defined as including carrying, burning or
otherwise handling or controlling any lighted or smoldering product containing tobacco,
including, but not limited to, cigarettes, cigars or pipes. Each owner is responsible for
the compliance with this rule by the owner and all residents within the owner’s unit, and
for all guests and invitees of such owner. Violations of this rule may result in a fine
pursuant to the Association’s fine schedule as adopted and amended from time to time
by the Board of Directors.
IN WITNESS WHEREOF, the undersigned hereby certifies that the foregoing Resolution
was adopted on the date first written above.
OWNERS ASSOCIATION
By:
Chairperson
By:
Secretary
Resolution – Washington State Version
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
RESOLUTION OF THE BOARD OF DIRECTORS OF ___________OWNERS
ASSOCIATION TO PROHIBIT SMOKING IN COMMON AREAS
WHEREAS, a regular meeting of the Board of Directors of the ________ Owners
Association (the “Association”) was held on ____________; and
WHEREAS, proper notice of this meeting was given; and
WHEREAS, all members of the Board of Directors were present at the meeting; and
WHEREAS, from time to time, the Association’s Board of Directors has received
complaints from residents who have encountered second-hand tobacco smoke while using the
common areas within the Association. Tobacco smoke, including second-hand tobacco smoke is
a known carcinogen. In addition, the Board of Directors believes that the large majority of
residents in the community find the smell of tobacco smoke objectionable; and
WHEREAS, Section ___ of the Association’s _______________ [Declaration or Bylaws]
authorizes the Board of Directors to adopt reasonable rules and regulations regulating the use of
the Association’s common areas; and
NOW THEREFORE, IT IS HEREBY RESOLVED that the Board of Directors adopts
the following rule, which shall become a part of the Association’s Rules and Regulations,
enforceable in like manner with all other Rules and Regulations:
Section ___. Smoking Prohibited in Certain Areas. Smoking is
prohibited on all common areas of the _____________ community, whether
indoors or outdoors. Without limiting the generality of the foregoing, this
prohibition applies to ____________________________ [Here, list your
association’s common areas, such as recreation buildings / swimming pool /
walking paths / bike paths / gardens / landscaped common areas / hallways /
elevators / the general common element patio / deck / parking garage / plaza /
roof, etc.] Smoking is defined as including carrying, burning or otherwise
handling or controlling any lighted or smoldering product containing tobacco,
including, but not limited to, cigarettes, cigars or pipes. Each owner is
responsible for the compliance with this rule by the owner and all residents within
the owner’s unit, and for all guests and invitees of such owner. Violations of this
rule may result in a fine pursuant to the Association’s fine schedule as adopted
and amended from time to time by the Board of Directors.
Resolution – Washington State Version
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
This Resolution is adopted and effective as of ________, 2012.
The Board of Directors:
______________________________
President
______________________________
Secretary
______________________________
Treasurer
______________________________
Director
______________________________
Director
Bylaw Amendment – Oregon Version
Materials are for general education purposes, and do not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA
After Recording Return to:
AMENDMENT TO BYLAWS
OF ________________ CONDOMINIUM OWNERS ASSOCIATION
TO RESTRICT SMOKING
The Bylaws of ________________ Condominium Owners Association were recorded as
an exhibit to the Condominium Declaration for __________________ Condominiums on
___________, 19__, in the records of ______________ County, Oregon, as Document No.
__________________ (the “Bylaws”). The Oregon Condominium Act, at ORS 100.415(1)(q)
and (r) provide that the Association’s Bylaws shall set forth any restrictions on the enjoyment of
the units and common elements, and any restrictions on use or occupancy of units.
From time to time, residents within the Condominium have complained to the Board of
Directors that second-hand smoke has infiltrated their individual units, sometimes originating
from people smoking tobacco in common areas, whether indoors or out, and sometimes
apparently originating from people smoking tobacco within adjacent units. Efforts to prevent the
migration of second-hand smoke have not succeeded, including sealing openings in walls,
applying weather-strips to doors, and asking residents who smoke to use smokeless ashtrays or
ionizing machines. Second-hand smoke continues to migrate into units within the
Condominium. In accordance with the procedures set forth in the Association’s governing
documents and under applicable law, the owners have adopted the following amendment to the
Bylaws:
The following new Section __ is hereby added to Article ___ of the Bylaws:
Section __. Smoking Prohibited. Smoking is prohibited on or within all
common element areas of the Condominium, including both general and limited
common element areas, and within all units. Without limiting the generality of
the foregoing, this prohibition applies to all general and limited common element
areas of the Condominium, whether indoors or outdoors, including, without
limitation, patios, balconies, garages, private streets, lobbies, hallways, walkways,
landscaped areas, and within all Condominium units. Smoking is defined to
include carrying, burning or otherwise handling or controlling any lighted or
smoldering product containing tobacco, including, but not limited to, cigarettes,
cigars or pipes. Each owner is responsible for the compliance with this rule by
the owner and all residents within the owner’s unit, and for all guests and invitees
Bylaw Amendment – Oregon Version
Materials are for general education purposes, and do not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA
of such owner. Violations of this rule may result in a fine pursuant to the
Association’s fine schedule as adopted and amended from time to time by the
Board of Directors.
IN WITNESS WHEREOF, the Chairman and Secretary of ___________________
Condominiums Owners Association hereby certify that this Amendment has been properly
adopted pursuant to the Bylaws effective this ____ day of ___________, 20__.
___________________ CONDOMINIUM
OWNERS ASSOCIATION
By:
Chairman
By:
Secretary
STATE OF OREGON )
) ss. ________________________, 2011
County of )
Personally appeared before me the above-named __________________________ and
who, being duly sworn, did say that ___ is the Chairman of ____________________,
Homeowners Association, and that said instrument was signed in behalf of said Association by
authority of its Board of Directors, and acknowledged said instrument to be its voluntary act and
deed.
____________________________________
Notary Public for Oregon
STATE OF OREGON )
) ss. ________________________, 2011
County of )
Personally appeared before me the above-named __________________________ and
who, being duly sworn, did say that ___ is the Secretary of ____________________,
Homeowners Association, and that said instrument was signed in behalf of said Association by
authority of its Board of Directors, and acknowledged said instrument to be its voluntary act and
deed.
____________________________________
Notary Public for Oregon
Bylaw Amendment – Washington State Version
___________________________________________________________________________________________________
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
AMENDMENT TO BYLAWS
OF ________________ OWNERS ASSOCIATION
TO RESTRICT SMOKING IN THE COMMON AREAS
This Amendment to the Bylaws of ______ Owners Association is made effective as of
the ____ day of __________, 2012, by the ___________Owners Association, a Washington
nonprofit corporation (the “Association”).
RECITALS
A. The original Bylaws of ___________Owners Association have an effective date
of _____________.
B. From time to time, residents within the Condominium have complained to the
Board of Directors that second-hand smoke has infiltrated their individual units, originating from
people smoking tobacco in common areas, whether indoors or out. Efforts to prevent the
migration of second-hand smoke have not succeeded, including sealing openings in walls,
applying weather-strips to doors, and asking residents who smoke to use smokeless ashtrays or
ionizing machines. Second-hand smoke continues to migrate into units within the
Condominium.
C. The Association, by vote of the Board of Directors, pursuant to Article ____of the
Bylaws, approved a motion to add a new Section ____ to Article ____ of the Bylaws to prohibit
smoking in the Common Areas.
D. This Amendment is being executed to formalize the amendment to Section ____
of Article ____ of the Bylaws.
AMENDMENT
NOW THEREFORE, the Bylaws are hereby amended and the following new Section
____ is added to Article ____ of the Bylaws:
Section ___. Smoking Prohibited. Smoking is prohibited on or within
all common element areas of the Condominium, including both general and
limited common element areas. Without limiting the generality of the foregoing,
this prohibition applies to all general and limited common element areas of the
Condominium, whether indoors or outdoors, including, without limitation, patios,
balconies, garages, private streets, lobbies, hallways, walkways, and landscaped
areas. Smoking is defined to include carrying, burning or otherwise handling or
Bylaw Amendment – Washington State Version
___________________________________________________________________________________________________
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
controlling any lighted or smoldering product containing tobacco, including, but
not limited to, cigarettes, cigars or pipes. Each owner is responsible for the
compliance with this rule by the owner and all residents within the owner’s unit,
and for all guests and invitees of such owner. Violations of this rule may result in
a fine pursuant to the Association’s fine schedule as adopted and amended from
time to time by the Board of Directors.
IN WITNESS WHEREOF, this Amendment is executed to be effective as of the date first
set forth above.
_____________OWNERS ASSOCIATION
A Washington nonprofit corporation
By _______________________________
Its President
Amendment to Declaration – Oregon Version
Materials are for general education purposes, and do not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA
After Recording Return to:
AMENDMENT TO DECLARATION
OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF ________________ HOMEOWNERS ASSOCIATION
TO RESTRICT SMOKING
The Declaration of Covenants, Conditions, and Restrictions of ________________
Homeowners Association were recorded on ___________, 19__, in the records of
______________ County, Oregon, as Document No. __________________ (the “Declaration”).
The Oregon Planned Community Act, at ORS 94.580(o) requires the Declaration to set forth “a
statement of any restriction on the use, maintenance or occupancy of lots or units.”
From time to time, residents within the community have complained to the Board of
Directors that second-hand smoke has infiltrated their individual units, sometimes originating
from people smoking tobacco in common areas, and sometimes apparently originating from
people smoking tobacco within adjacent units or lots. Efforts to prevent the migration of secondhand smoke, including sealing various openings in walls, applying weather-stripping to doors,
and asking residents who smoke to use smokeless ashtrays or ionizing machines have not
succeeded. Second-hand smoke continues to migrate into the units or onto the lots of
nonsmoking residents within the community. In accordance with the procedures set forth in the
Association’s governing documents and under applicable law, the owners have adopted the
following amendment to the Declaration.
The following new Section __ is hereby added to Article ___ of the Declaration:
Section __. Smoking Prohibited. Smoking is prohibited on or within all
common areas of the project, and within all units. Without limiting the generality
of the foregoing, this prohibition applies to all common areas of the project,
whether indoors or outdoors, including, without limitation, patios, balconies,
garages, private streets, lobbies, hallways, walkways, landscaped areas, and
within all living units within the project. Smoking is defined as including
carrying, burning or otherwise handling or controlling any lighted or smoldering
product containing tobacco, including, but not limited to, cigarettes, cigars or
pipes. Each owner is responsible for the compliance with this rule by the owner
and all residents within the owner’s unit, and for all guests and invitees of such
owner. Violations of this rule may result in a fine pursuant to the Association’s
fine schedule as adopted and amended from time to time by the Board of
Directors.
Amendment to Declaration – Oregon Version
Materials are for general education purposes, and do not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA
IN WITNESS WHEREOF, the Chairman and Secretary of _______________
Homeowners Association hereby certify that this Amendment was properly adopted pursuant to
the Declaration on or about ___________, 20__.
__________________________ HOMEOWNERS
ASSOCIATION
By:
Chairman
By:
Secretary
STATE OF OREGON )
) ss. ________________________, 2011
County of )
Personally appeared before me the above-named __________________________ and
who, being duly sworn, did say that ___ is the Chairman of ____________________,
Homeowners Association, and that said instrument was signed in behalf of said Association by
authority of its Board of Directors, and acknowledged said instrument to be its voluntary act and
deed.
____________________________________
Notary Public for Oregon
STATE OF OREGON )
) ss. ________________________, 2011
County of )
Personally appeared before me the above-named __________________________ and
who, being duly sworn, did say that ___ is the Secretary of ____________________,
Homeowners Association, and that said instrument was signed in behalf of said Association by
authority of its Board of Directors, and acknowledged said instrument to be its voluntary act and
deed.
____________________________________
Notary Public for Oregon
Washington State Version
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
After Recording Return to:
AMENDMENT TO DECLARATION
OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF ________________ ASSOCIATION
WHEREAS, _____________ LLC, a Washington limited liability company (“Declarant”),
executed a certain Condominium Declaration for _________ Condominium (“the Declaration”)
dated __________, and recorded under Recording No. _____________ in the records of
________County, State of Washington, and as amended by the ______Amendment thereto
recorded under _______County Recording No. __________; and
WHEREAS, RCW 64.34.216(1)(n) provides that the Declaration must contain any restriction on
the use of the units;
WHEREAS, RCW 64.34.264(4) provides that no amendment may change “the uses to which any
unit is restricted, in the absence of the vote or agreement of the owner of each unit particularly
affected and the owners of units to which at least ninety percent of the votes in the association
are allocated other than the declarant or such larger percentage as the declaration provides;”
WHEREAS, pursuant to Section ____ of the Declaration and RCW 64.34.264(4), the owners of
each unit particularly affected by this Amendment and the owners of units to which at least
ninety percent (90%) of the votes in the ___________ Owners Association are allocated have
affirmatively voted in favor of amending the Declaration as hereinafter set forth;
NOW, THEREFORE, the President of ____________Owners Association certifies the
Declaration to have been amended in the following particulars:
The following new Section ___ is hereby added to Article ___ of the Declaration:
Section __. Smoking Prohibited. Smoking is prohibited on or within all
common areas of the project, and within all units. Without limiting the generality
of the foregoing, this prohibition applies to all common areas of the project,
whether indoors or outdoors, including, without limitation, patios, balconies,
garages, private streets, lobbies, hallways, walkways, landscaped areas, and
within all living units within the project. Smoking is defined as including
carrying, burning or otherwise handling or controlling any lighted or smoldering
Washington State Version
These sample forms are provided as a courtesy by Rafel Law Group PLLC.
All material is for general education purposes, and does not constitute legal or management advice.
These and other tools found at www.smokefreehousinginfo.com/pages/condos are part of a collaboration
between CAI Oregon, Oregon Smokefree Housing Project, and Clark County Public Health, WA.
product containing tobacco, including, but not limited to, cigarettes, cigars or
pipes. Each owner is responsible for the compliance with this rule by the owner
and all residents within the owner’s unit, and for all guests and invitees of such
owner. Violations of this rule may result in a fine pursuant to the Association’s
fine schedule as adopted and amended from time to time by the Board of
Directors.
The undersigned President (or other officer designated to record and certify
amendments to the Declaration) of _______________ Owners Association hereby
certifies that this Amendment has been approved by the owners of each unit particularly
affected by this Amendment and the owners of units to which at least ninety percent
(90%) of the votes in the Association are allocated.
DATED this ____ day of ______, 2012.
________________OWNERS ASSOCIATION,
A Washington nonprofit corporation
By:
Its President
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that __________is the person who
appeared before me and that said person acknowledged that (he/she) signed this instrument and
on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
President of ___________ Owners Association, to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED under my hand and official seal this _____ day of __________, 2012.
__________________________________________
Notary Signature
__________________________________________
Print or type name
Notary Public in and for the State of Washington
Residing at ________________________________
My commission expires ______________________
CHANGE
is in the
AIR
Smoke-Free
Opportunities in
Community Associations:
Smoking: The world has changed
In 1965, 1/2 of adult men and 1/3 of women in the
US smoked and they did it:
• At work
• On airplanes
• During college classes
• In hotels and theatres
• In restaurants, bars and taverns
• In their homes and
• In their beds
Present Day
• Most workplaces are smokefree
• Homes with no‐smoking rule:
‐ 91% in Oregon
‐ 94% in Washington
• People expect smoke‐free air where
they work and where they live
Secondhand Smoke (SHS)
There is no safe level of exposure
“The scientific evidence is now indisputable:
secondhand smoke is not a mere annoyance.
It is a serious health hazard that can lead to
disease and premature death in children and
nonsmoking adults.” U.S. Surgeon General, 2006
• Seeps into apartments where
no one smokes through shared
walls, ventilation systems and
ductwork.
• Is absorbed into furniture,
carpets, curtains, clothing, etc
that people and pets come into
contact with.
Secondhand Smoke Indoors SHS cannot be controlled
“At present the only means of
effectively eliminating the health risks
associated with indoor exposure is
to ban smoking activity.”
American Society of Heating, Refrigerating &
Air-Conditioning Engineers (ASHRAE)
“Treatments” can make it worse
• Using air cleaning technologies or
ventilating buildings does not
eliminate SHS exposure.
• Heating, ventilation and air
conditioning systems can actually
distribute SHS throughout a
building.
ASHRAE goes on to say:
OR and WA Smokefree Laws
• This includes public and common areas
and anywhere an employee must pass
through in the course of their duties.
• No‐smoking within 10 feet (OR) and 25
feet (WA) of any entrance, window or
intake unit.
Almost all workplaces and public places are
SMOKEFREE
Prohibiting smoking is legal…
•Smokefree policies are not discriminatory under
state and federal fair housing laws. Smoking is not a
disability, nor a reasonable accommodation for a
disability.
•Addiction to nicotine does not fit within the
definition of “handicap” under fair housing laws.
of Oregon
Resources Available
Go to www.smokefreehousinginfo.com:
• Legal fact sheet
• Steps to move forward
• Sample resident letter and survey
• Legal templates – OR and WA versions
THE LEGAL MEANS
• Oregon Smoke‐Free Workplace Law,
ORS 433.835
• Washington State Smoking in Public Places Law,
RCW 70.160.030
• Different ways to adopt a smoking restriction
• Tough questions
Adopting smoking restrictions
• Amendment to Declaration
• Amendment to Bylaws
• Board rule or resolution
13
Different Methods:
Adopting smoking restrictions ‐ OR:
14
• Planned Community Act: Contents of Declaration:
“a statement of any restriction on the use,
maintenance, or occupancy of Lots or Units. . . .”
(ORS 94.580(2)(o)).
• Oregon Condominium Act: Contents of Bylaws:
“Any restriction on use or occupancy of units. . . .”
(ORS 100.415(1)(r)).
• Typically, Bylaws allow Board to adopt rules &
regulations governing use of the property (check to
see if authority is limited to regulating use of
common area).
Adopting smoking restrictions ‐ WA:
15
• Courts reluctant to ban smoking on
nuisance, trespass or noxious odor grounds
• Washington Condominium Act
– Common area restrictions: 67% vote to amend
Declaration (RCW 64.34.264(1))
– In‐unit restrictions: 90% vote plus consent of each
affected unit to amend Declaration (RCW
64.34.264(4))
Factors to consider when
deciding whether and
how to restrict smoking
16
The Scope of Prohibition:
17
• Parts of common areas (only general
common elements in a condominium)
• All common areas (general and limited
use common elements)
• All common areas and inside units
Characteristics & Location ‐ Attached:
18
• High‐rise building, common areas are only
hallways and elevators
• Stacked units with common areas
including balconies and decks, with
windows that open
• Attached units with front yards, back
yards, and decks
Characteristics & Location ‐ Detached
19
• Single‐family homes with common area of
a rec building and pool
• Single‐family homes with substantial
common area (e.g., Mountain Park)
• Single‐family homes with substantial
common areas in fire‐prone area (e.g.,
Sunriver, Black Butte)
“No noxious or offensive activities shall be carried on in any
unit, nor shall anything be done or placed upon any unit
with interferes with or jeopardizes the enjoyment of other
units or the common elements, or which is a source of
annoyance to residents.
Unit occupants shall exercise extreme care not to make
noises which may disturb other unit occupants, including
the use of musical instruments, radio, televisions and
amplifiers.
No unlawful use shall be made of the condominium, nor
any part thereof, and all valid laws, zoning ordinances and
regulations of all governmental bodies having jurisdiction
thereof shall be observed.”
Enforcing standard nuisance clause
20
Enforcing standard nuisance clause (continued)
• Right of HOA to enforce
• Duty of HOA to enforce
• Right of Owner to enforce
21
Implementation
Survey
owners Attorney prepares
legal language
Hold community
meeting
Conduct
vote Notify owners,
post signs
Record
amendment
Enforcement
Ask residents to
inform guests
Respond promptly &
consistently to complaints
Clean up butts,
smoke damage
Notify owners
(through every
means)
Post signs
What about grandfathering?
• Can pose enforcement issues:
– Difficult to keep track
– Neighbors are still exposed to SHS
– Messaging about policy is not clear – is it
smokefree or not?