In a condominium or cooperative, it is important to have a complete understanding of your governing documents (such as a condominium’s by laws or a cooperative corporation’s proprietary lease/occupancy agreement) which dictate what requirements need to be fulfilled to amend the governing documents (and subsequently, the building’s house rules and regulations.) They also set forth specific procedures to be followed such as the exact percentage (if any) of owners’/shareholders’ votes that are required to implement changes.
Boards must ensure transparency when attempting to implement a smoking ban. Owners and shareholders must be thoroughly informed on a) the board’s endeavors and rationale; b) their own role in the process; c) the resolution to be achieved; and d) how the amendment will be applied and enforced.
Here are answers to the most common questions that will help your building successfully implement a smoking ban and add value to your property.

What are the benefits of implementing a no smoking policy?

There are both immediate and long-term positive effects from a smoking ban. First and foremost, you will be positively addressing the obvious health hazards experienced by the community as a result of cigarette and secondhand smoke.
You will also decrease the risk of fire hazards as smoking buildings often contend with cigarette butts which remain lit, littered onto neighboring balconies or common areas, including exterior grounds.
Additionally, boards and management will avoid having to mediate shareholder versus shareholder issues concerning persistent, offensive odors emanating from such smoke.
Finally, overall building aesthetics will improve. When a building is cigarette-friendly, there is an increase in littering habits, leading to a need for cigarette disposal receptacles which infringe upon the property’s landscaping.

What resources do we have within our governing documents to facilitate this process?

Your condominium or cooperative is equipped with governing documents such as the by laws (in a condominium) or proprietary lease/occupancy agreement (in a cooperative) that describe the steps which must be taken to begin this process. It is imperative that you partner with an experienced and knowledgeable managing agent who has a comprehensive understanding your building’s governing documents, and the due diligence needed to undertake such an endeavor. Ultimately, you will need a qualified attorney to draft the appropriate amendments.

How do we successfully obtain owner/shareholder votes in our favor?

To make the process successful and conducive to obtaining the necessary owner/shareholder votes required to implement a smoking ban (or any newly adopted policy), it is necessary to have detailed and frequent communication distributed to all residents. In addition to written communications, information meetings should be held to address those residents who may raise questions or concerns during this process. It is also necessary to articulately communicate the required percentage of owner/shareholder votes which must be obtained in order to implement your new resolution, after which it is also a good idea to communicate how the board and management intend to enforce the new policy.

What obstacles might we face during the process of obtaining owner/shareholder votes to amend our governing documents?

As with any important changes or large transitions, resident opposition is possible. It is of utmost importance that the board and management are transparent at every step during implementation efforts, and bolster this with ample and timely status updates.
You will need to work closely with your managing agent and with the building attorney for legal expertise, to draft communications such as building-wide memorandums and progress reports, as well as schedule special meetings to respond to all residents’ needs, both individually and in an open forum.
It is equally important to remember that, when attempting to implement a change of this magnitude, compromise and accommodations may be necessary. Depending upon each building’s unique circumstances, there may be a need to implement a “grandfather” rule before enforcing the smoking ban to address those owners and shareholders who have purchased and invested in the building prior to the consideration of this ban.  Your managing agent and building attorney will help you decide how to handle these owners/shareholders who do smoke and bought into the community when there was no ban..

How do we communicate the negative effects of smoking and cigarette refuse within our building?

To create a circumstance which supports your endeavors in implementing a no smoking policy, it’s wise to work with your managing agent to identify and distribute case studies of buildings that are comparable in size and demographics in order to illustrate how smoking bans have significantly improved living conditions. These can be case studies which prove how threats of secondhand smoke have been eliminated, how litter has decreased, or how common areas are better maintained with less wear and tear on the property and its aesthetics.

How do we ensure that our newly adopted policy is effectively enforced?

There are a few ways to enforce your new smoking ban if it is successfully implemented. Working with your managing agent, you will need to carefully research your governing documents to identify whether the board can adopt and then apply “fines” for infractions, “administrative fees” only, or neither. In a case where your building’s governing documents do not allow you to levy monetary penalties for violations, you may need to create a protocol consisting of warning letters which escalate towards restricted use of amenities (in situations of non-compliance), or other such non-monetary actions.
Tuesday August 18, 2015