For residents
Did you know that the secondhand tobacco smoke drifting into your apartment is harmful to your health? The United States Environmental Protection Agency classifies secondhand smoke as a Class A carcinogen, which puts it in the same category as asbestos, formaldehyde, benzene, arsenic, and other highly toxic substances. Protect yourself and your family by reducing or eliminating secondhand smoke exposure in your home.
Start by learning the facts. While a lot of people have heard that secondhand smoke is harmful, few people know just how harmful it is.
- Secondhand smoke causes approximately 7,330 deaths from lung cancer and 33,950 deaths from heart disease each year.
- Children who are exposed to secondhand smoke are more likely to develop bronchitis, pneumonia, asthma, and ear infections.
- Secondhand smoke has been linked to Sudden Infant Death Syndrome (SIDS).
- Secondhand smoke can cause heart disease and lung cancer in adults.
- Secondhand smoke exposure has an immediate adverse effect on the cardiovascular system in adults.
- Secondhand smoke can be harmful to your pets.
- Once present in an apartment, secondhand smoke can linger in the air for hours.
In addition to the dangers of secondhand smoke noted above, smoking in multiunit residential buildings is a health concern because the secondhand smoke is not contained inside the smokers’ home. Instead, it drifts into common areas and other apartments. It seeps under doors, through kitchen and bathroom ventilation ducts, and through electrical wall sockets and light fixtures. After seeping into neighboring apartments, secondhand smoke can stay in the air for hours, exposing non-smoking tenants. In addition, cigarettes are a common cause of residential fires. According to the US Fire Administration, 2021 national estimates for residential building smoking-caused fires and losses indicate there were 7,800 fires, 275 deaths, 750 injuries and $361,500,000 in dollar loss.
Once you know the facts, look for solutions. The most effective way to eliminate secondhand smoke exposure in a multi-unit building is to live in a smoke-free building. Work with the building management and other residents to make your building smoke-free. Landlords and condominiums can implement building-wide no smoking rules, even in individual units and for existing residents. It is both legal and easy to do and will probably save the landlord money.
More and more rental properties and condominiums in Massachusetts are making their properties completely smoke-free. Resources to support landlords in adopting a smoke-free housing policy are available later in this section.
If people are smoking in common areas of the building, such as hallways, laundry rooms or stairways, you can contact the Massachusetts Tobacco Cessation and Prevention Program to see if those areas of your building should be smoke-free under the Massachusetts Smoke-Free Workplace Law. The Smoke-Free Workplace Law requires that any enclosed area where people work must be smoke-free. If your building employs cleaning crews, superintendents or other staff, those common areas where they work should be smoke-free. For more information or to file a complaint call 1-800-992-1895 or visit www.mass.gov/dph/mtcp.
While a building-wide, smoke-free policy is your best protection, some residential buildings allow smoking inside individuals units. In those cases, try to take steps to protect yourself and your family. Inform your landlord or condominium trustee that smoke is seeping into your home. Consider talking with the neighbor who is smoking. Explain that secondhand smoke is drifting into your home and that you are trying to find a solution. More on how to talk to neighbors and your landlord are available later in this guide. Ask building management to plug holes, cracks and other openings through which smoke is drifting into your home. If the drifting smoke persists, know your rights under the law.
Know your rights under the law as a tenant. You have the legal right to a safe and livable apartment. If secondhand smoke is filling your apartment, the landlord may be required by the courts to take steps to reduce or eliminate exposure.
Tenants have a right to a safe and habitable home under the statewide Massachusetts State Sanitary Code. Learn more.
If you believe a company, business or organization has discriminated against you because of your health status, you can file a civil rights complaint with the Civil Rights Division of the Attorney General’s office.
The MA Attorney General’s office has guidance about Reasonable Accommodation in Housing:
- When conditions in your apartment are affecting your health
- Attorney General’s Guidance on Reasonable Accommodations in Housing
- How to File a Civil Rights Complaint
Short-term solutions
Note: This section applies to residents of both multi-unit apartment buildings as well as condos.
While the best way to eliminate secondhand smoke exposure in a multi-unit building is to go smoke-free, this is not a solution that all landlords will want to try. In those cases, try to work with the smoking tenant and landlord to reduce exposure. The tenant who smokes probably does not know secondhand smoke is drifting into your apartment or may not think that you are bothered by it. Make them aware of the issue and ask for their help. Try the following steps:
- If a neighbor is smoking inside their apartment, ask them to consider smoking outside.
- If the smoke is coming in through a window from smokers outside, either ask the smokers to move to another location or talk to your landlord about establishing a designated smoking area away from windows or doors.
- If a neighbor is unwilling to smoke outside, speak with them and your landlord about making sure that they keep the door closed and possibly installing a door sweep, which may reduce the drifting smoke.
- Also, talk to your landlord about plugging up cracks and holes in the walls, ceilings, and floors where smoke is seeping into your apartment. It is most effective if the landlord does this in your unit and the smoker’s unit.
Remember to get your landlord’s permission before making any change to the apartment. The landlord may be willing to pay for the improvements and, in some cases, should pay.
If the tenant who smokes is not willing to cooperate, or if no other short-term solutions seem to work, ask your landlord to relocate you to another apartment or building if you are willing to relocate. Some landlords have designated smoke-free buildings. Remember to check the new apartment for secondhand smoke several different times during the day and week before moving in.
It is important to understand that these recommendations above may not eliminate secondhand smoke from drifting into your apartment. The best solution is to live in a smoke-free building.
Legal rights of tenants
The Massachusetts Smoke-Free Workplace Law in Housing
The Smoke-Free Workplace Law requires that any enclosed area where people work must be smoke-free. If your building employs cleaning crews, superintendents or other staff, those common areas where they work should be smoke-free and it’s your landlord or property manager’s job to make sure that they are. For more information or to file a complaint call 1-800- 992-7525 or visit mass.gov/dph/mtcp. Outdoor common areas are not included under the law.
A landlord or property manager who allows smoking to occur in areas where it is prohibited by state law can be subject to fines of up to $300. Each day that smoking is allowed can be a separate violation, so fine totals can increase quickly.
The Sanitary Code
Your local health department or board of health is an important resource. Health inspectors work to ensure that apartment buildings follow ventilation and other code requirements. Correcting code violations often helps address drifting secondhand smoke. Your health inspector may have experience with this issue and can talk with your landlord to recommend changes that will help.
Lawsuits
Litigation should be a last resort, but sometimes it is necessary. Tenants may bring legal action directly against landlords or the tenant whose smoke is drifting into their apartment. The following are some of the legal claims:
- Negligence
- Breach of the Covenant of Quiet Enjoyment
- Nuisance
- Violation of the Warranty of Habitability
- Discrimination under State Disability Laws
The following are three cases in Massachusetts that dealt with the issue of secondhand smoke:
Harwood Capital Corp. v. Carey, No. 05-SP00187, Boston Housing Court (2006). The Boston Housing Court found that secondhand smoke that had drifted out of a rented condominium unit and into neighboring units constituted a nuisance. The precedent established by this case supports claims by tenants that drifting secondhand smoke is a nuisance, for which landlords are liable.
50-58 Gainsborough St. Realty Trust v. Haile, No. 98-02279, Boston Housing Court (1998). A judge in the Boston Housing Court awarded tenants rent abatement because of secondhand smoke seeping into their apartment. The judge found that “the evidence does demonstrate to the Court the tenants’ right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub below.”
Donnelley v. Cohasset Housing Authority, 2003 WL 21246199, Superior Court (2003). A third area of potential liability arises from the Federal Fair Housing Act of 1988 and the Massachusetts state law equivalent. Fair housing laws prohibit discrimination in housing, including discrimination against tenants who are disabled. If a tenant with a disability proves that exposure to secondhand smoke substantially impairs their ability to reside in the apartment, then the landlord must make “reasonable accommodations” for the tenant.
In Donnelley v. Cohasset Housing Authority, the tenant claimed that his exposure to secondhand smoke was a violation of fair housing laws. The court found that secondhand smoke could potentially constitute a violation, but did not in this case, because the tenant’s discomfort and other mild reactions did not qualify as a substantial impairment. One disability that could potentially qualify is asthma, which is one of the most common respiratory illnesses in Massachusetts according to the state Department of Public Health. Secondhand smoke is a known trigger for asthma attacks.
If you think that secondhand smoke is contributing to your illness, speak with your doctor, who may be able to provide you with documentation that you can use when speaking with your landlord, or if you decide to pursue a legal action.
If your building is a non-smoking building, it is your landlord’s responsibility (not yours) to investigate the source of the smoke and determine who is violating the rule, and thereafter, enforce the rule.
Working with neighbors and landlords to go smoke-free
The most effective way to eliminate secondhand smoke in a multi-unit building is for your landlord to make the building completely smoke-free. More and more landlords are making their properties smoke-free.
Landlords can prohibit smoking. It is entirely legal, and implementing the rule is simple. When current tenants renew their leases, the landlord simply has them sign a lease addendum that prohibits smoking. New tenants sign the addendum when signing their lease.
So, how do you convince your landlord to make the change? The key is to communicate persuasively and make the issue relevant to the landlord, such as the fact that smoke-free policies reduce maintenance costs and conflicts among tenants. Here are some things you can do:
Document the problem. Identify the source of the secondhand smoke, how it enters your apartment and when it is worst. Keep a written record with dates and times of exposure. Simply mentioning to your landlord that you smell secondhand smoke makes it seem like a mere annoyance, rather than a serious problem.
Get testimonials. Have others confirm the presence of secondhand smoke in your apartment or their own. The consensus of neighboring tenants, friends, maintenance personnel and others can be very convincing.
Build consensus among the other tenants and get their support. Ask friends in the building whether they are experiencing the same problem. Have them document the problem just like you did. Talk to them about the benefits of a smoke-free building. Send letters to other tenants asking them to get involved.
Recommend going smoke-free as a solution. Make sure your landlord knows that drifting secondhand smoke is a serious problem in the building, and then recommend a smoke-free rule as a solution. Other tenants can help highlight the problem by mailing letters or sending emails about their exposure to secondhand smoke in the building. The more letters and emails received by the landlord, the more important the issue becomes. Also, have as many tenants as possible sign a petition in support of a smoke-free rule and share the petition with the landlord.
Tell your landlord about the many benefits of going smoke-free. When landlords make their properties smoke-free, they can:
- Attract more tenants. Massachusetts has one of the lowest smoking rates in the country, meaning there is a high demand for smoke-free housing. Many smokers do not smoke inside their homes and are interested in smoke-free housing.
- Increase interest in their properties. A recent survey in Massachusetts revealed that most prospective tenants are immediately less interested in an apartment when they smell secondhand smoke.
- Save money by reducing the need for repairs. Apartments where smoking was allowed will require more time and money to re-rent.
- Eliminate a leading cause of residential fires. Nationwide, property damage from cigarette-caused fires exceeds $350 million annually.
- Keep tenants happy. Tenants may choose to move out rather than expose themselves to secondhand smoke.
- Implement a smoke-free rule easily. When current tenants renew their leases, the landlord simply has them sign a lease addendum that prohibits smoking. New tenants sign when signing their lease. View a sample of a no- smoking lease addendum below.
Provide your landlord with resources on going smoke-free. Information for landlords on how to make their properties smoke-free is available later in this section.
For small and medium landlords
Are you thinking of making your properties nonsmoking? More and more landlords are going nonsmoking. It is easy to do.
THE INFORMATION BELOW IS PROVIDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS LEGAL OPINION OR AS A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM AN ATTORNEY. READERS WITH QUESTIONS ABOUT THE APPLICATION OF THE LAW TO SPECIFIC FACTS ARE ENCOURAGED TO CONSULT LEGAL COUNSEL.
The basic steps
1) Tell your residents the property is going nonsmoking, including inside all apartments.
2) Give residents plenty of reminders ahead of the effective date. Living in a nonsmoking home is a big change for some people. Early and repeated reminders will help them prepare.
3) Use a written No Smoking Lease Addendum even if you do not use a lease. New residents sign the Addendum when they sign their lease. Current residents sign the Addendum when they sign their lease renewals. Month-to-month residents sign the Addendum at least one month before the effective date. Sample Lease Addendum
4) Put up No Smoking signs in your building and outdoor non-smoking areas on your property.
5) Remember that you are prohibiting smoking, not people who smoke. People who smoke should be welcome provided they smoke outside their unit in compliance with your non-smoking rule.
Smoking outside. The best option is to make your entire property nonsmoking including all the grounds. If you decide to designate an outdoor smoking area, keep it far away from any buildings. Smoking near a building, including on decks and patios, leads to smoke drifting back inside the building.
Marijuana. No Smoking rules customarily include any combustible smoking material including marijuana. Neither the Adult-Use Marijuana Law nor Medical Marijuana Law require landlords to allow residents to smoke marijuana anywhere. 935 CMR 500.840; 501.840. No-smoking rules do not apply to edible forms of marijuana.
Vape products. Vape products may be included in your No Smoking rule. State law currently prohibits vaping in all workplaces where smoking is prohibited.
Tips for compliance
No Smoking Lease Addendums are enforceable in court. However, compliance often is more easily achieved with some basic steps.
Keep communicating with residents. In addition to having residents sign the lease addendum prior to when the no-smoking rules become effective, find ways to remind residents frequently that the building will be going nonsmoking. Make sure prospective residents know the building is non-smoking. Also, remind residents that they are responsible for guests who violate the no-smoking rule.
Tell your residents why the building is going smoke-free. A non-smoking building is a safer and healthier place to live. Smoke does not stay inside one apartment. Instead, it drifts outside into neighboring units where it can stay in the air for hours. Another reason to go nonsmoking is to avoid the damage caused by secondhand smoke to walls, rugs, ceilings, shades, and appliances.
If someone complains about smoking, respond quickly with some simple steps. A good starting point is to send a written reminder to everyone on the floor or area where the smoke was reported. Remind residents the building is nonsmoking and that residents who want to smoke must go outside someplace away from the building where smoking is allowed. Post No Smoking signs in areas where the smoke was reported. If you know a resident who is smoking send them a written warning.
Changes to buildings and property that help. Make the building and property look like nonsmoking. Post No Smoking signs inside the building, at entrances, and other locations around the property. Remove ashtrays and clean up cigarette butts on the ground -they send the signal that smoking is allowed.
An outdoor smoking area, if you choose to designate one, should be located away from any building. Smoke drifts back inside through windows and doors. Also, keep your designated smoking area away from entrance walkways. Most residents and staff will not want to walk through the smoking area to enter and leave the building.
Offer information on quitting smoking. No one is required to quit smoking under the No Smoking rule, but research shows most smokers want to stop. Residents might consider the No Smoking rule as a reason to try stopping. Consider giving residents information on quitting services. Free resources are available at mass.gov/quitting or by calling 1-800-QUIT-NOW.
Reasons to support no smoking
Health. Smoke does not stay inside the apartment of someone who smokes. It seeps into common areas and other apartments where it remains in the air exposing occupants for hours.
There is no safe level of exposure to secondhand smoke. The U. S. Environmental Protection Agency classifies secondhand smoke as a “Class A Carcinogen,” which means even very low levels of exposure are dangerous. Secondhand smoke can best be described as a “toxic soup.” According to the Surgeon General’s Report, of the more than 7,000 chemical compounds found in secondhand smoke, no less than 70 of them are known or probable human carcinogens. Children are particularly vulnerable. Exposure to secondhand smoke causes bronchitis, pneumonia, asthma, and ear infections in children. Exposure to secondhand smoke also has been linked to sudden infant death syndrome.
Demand for non-smoking buildings. There is a high demand for smoke-free apartment buildings. Massachusetts has one of the lowest smoking rates in the country. Residents do not want to rent where they will be exposed to secondhand smoke.
Save money on building maintenance. Turning over a smoking unit costs more money and takes more time than a non-smoking unit. Smoking typically requires the replacement of carpets, repainting with stain and odor sealant, and other steps to abate the odor of tobacco smoke.
Standard ventilation and air purifiers do not work. The American Society for Heating, Refrigerating and Air Conditioning Engineers, which sets ventilation standards, does not recommend a ventilation standard for removing secondhand smoke because its research shows that no standard ventilation system or air purifier can handle the job.
Eliminate a leading cause of fires. Cigarette and other smoking product-related fires are a substantial cause of home fires.
Potentially reduce insurance premiums. No-smoking rules reduce the risk of fire-related property damage, injury, and death. Check with your insurance broker.
Reduce potential legal liability. Landlords are required to provide their residents with a safe and habitable dwelling. Secondhand smoke that travels into an apartment creates a harmful environment, for which the landlord may be liable. Residents have brought successful legal actions based on drifting secondhand smoke. Landlords can avoid the potential legal liability simply by eliminating smoking.
Reduce conflict among residents. Secondhand smoke can be a common source of conflict among residents. Residents will often choose to move out rather than expose themselves and their family members to secondhand smoke. No-smoking policies reduce the frequency of resident turnovers.
Are no-smoking rules legal?
There is no doubt that no smoking rules are legal. A landlord may prohibit smoking anywhere in and on the property.
Smoking is not a protected constitutional right. The question of whether smoking is constitutionally protected was answered once and for all in the 2005 case entitled American Lithuanian Naturalization Club, Athol, Mass., Inc., v. Board of Health of Athol. The case involved a legal challenge to a board of health regulation that prohibited smoking in private clubs. The Massachusetts Supreme Judicial Court reviewed federal and state constitutional protections and found that none of them protected smoking.
Anti-discrimination laws do not protect smoking. Although the nicotine in tobacco products is highly addictive, anti-discrimination laws do not protect smoking. Anti-discrimination laws, such as the American with Disabilities Act (“ADA”), the Federal Fair Housing Act of 1988 and the Massachusetts state-law equivalents are designed to prevent discrimination based on race, disability, and certain other characteristics. The only conceivable way that any of these laws would stop landlords from prohibiting smoking was if someone were to argue that smoking is a protected disability. However, it has already been established that smoking is not a protected disability. The ADA states that “nothing in this [law] shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking…”
Numerous Massachusetts landlords are already non-smoking. Numerous private and public landlords are already non-smoking. Some of the largest landlords in Massachusetts, including Beacon Communities, Corcoran Management, and Peabody Properties have made most of their building non-smoking. Nearly all state municipal housing authorities, including Boston Housing Authority, are non-smoking. The US Department of Housing and Urban Development requires all federally subsidized housing authorities to be non-smoking.
For more information on how to implement a no-smoking rule or to have your questions answered, call the Massachusetts Smoke-Free Housing Project at (877) 830-8795.
For large landlords
For condo associations
THIS CONTENT IS PROVIDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS LEGAL OPINION OR AS A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM AN ATTORNEY. CONDOMINIUM DOCUMENTS VARY AND MAY REQUIRE DIFFERENT STEPS THAN DESCRIBED IN THIS GUIDE. READERS WITH QUESTIONS ABOUT THE APPLICATION OF THE LAW TO SPECIFIC FACTS ARE ENCOURAGED TO CONSULT LEGAL COUNSEL.
More and more condominiums are going completely non-smoking including inside units.
The process involves amending the condominium’s bylaws or master deed. The procedure for amending each of these documents is explained in the document itself. Copies of these documents are available at the registry of deeds in the county where your condominium is located. Sample No Smoking Bylaw Amendment for Condominiums
Focus your efforts on the voting process. It is the most important part of making your condominium non-smoking. The entire process is summarized later in this content.
Here are some tips for the voting process:
- Educate unit owners on the benefits of a non-smoking building before and during the voting process. Distribute information and host informational meetings. The goal is to raise awareness of the problem of drifting secondhand smoke.
- Engage unit owners in the process including by recruiting volunteers to get out the vote. Make sure that the volunteers understand unit owners are free to vote however they wish and to do so privately.
- The condominium trustees should support the change. Unit owners often look to the trustees for guidance.
- Make the voting process as easy as possible. Circulate ballots for voting and make it easy for completed ballots to be returned, for example, electronically or by dropping them off at a convenient location.
- Keep the vote open for several weeks or even months if possible. Send reminders to residents who have not voted and provide everyone with updated vote tallies throughout the process.
- Make sure to comply with the voting process described in the condominium document you are amending, that is, the master deed or bylaws. Remember, however, the condominium documents describe the minimum process. Do more for a successful vote.
- Support your property management staff throughout the voting process.
Why go non-smoking?
Health benefits. Smoke drifts into neighboring units and common areas. It seeps under doors, through ventilation ducts, electrical wall sockets and light fixtures. Plugging up these pathways may help but rarely fully stops the smoke. Once in neighboring units or common areas, the smoke remains can stay in the air for hours, exposing residents and building staff.
The Surgeon General’s Report stated secondhand smoke is best described as a “toxic soup” with more than 7,000 chemical compounds, no fewer than 70 of which are known or probable human carcinogens. The U. S. Environmental Protection Agency classifies secondhand smoke as a Class A carcinogen, which puts it in the same category as asbestos, formaldehyde, benzene, arsenic, and other highly toxic substances.
Children exposed to secondhand smoke are more likely to develop bronchitis, pneumonia, asthma, and ear infections. Secondhand smoke has been linked to sudden infant death syndrome. The 2006 Surgeon General’s Report stated that nonsmokers exposed to secondhand smoke at home increase their risk of developing heart disease by 25-30%, and their risk of developing lung cancer by 20-30%.
Financial benefits. There is strong market demand for non-smoking condominiums. The smoking rate in Massachusetts has decreased dramatically over the past decade. Massachusetts currently has one of the lowest smoking rates in the country. Properties that smell of tobacco smoke take longer to sell and often sell at a price that is less than optimum.
Legal issues. Condominium association are subject to state and federal disability law and may be required to take action to abate secondhand smoke in response to a reasonable accommodation demand.
The Process of Going No Smoking
What areas of the condominium should the no-smoking policy cover?
Start with the question “what areas will the no smoking policy cover?” State law requires all condominiums prohibit smoking in indoor common areas such as hallways, stairways, and storage areas. So, focus the discussion on outdoor common areas and inside units.
Condominiums may and frequently do prohibit smoking in all outdoor areas. When allowed outdoors, keep smoking away from any buildings including decks, porches, entrance ways and the like. Smoke emitted near a building will flow back into open doors and windows into units, causing substantial exposure to owners in that area.
Condominiums may prohibit smoking inside all its units, including existing owners and all future owners. Alternatively, a condominium may exempt existing unit owners, making their units no smoking at some designated time in the future or when the unit is sold to a new owner. It is good practice to require those existing unit owners who wish to be exempted to register their units with the trustees. The registration period is customarily between 60 to 90 days from the effective date of the policy.
Consider limiting the time units are exempted. For investor-owned units, existing occupants are typically exempted until the end of the lease or one-year, whichever occurs first. For owner-occupied units, the existing occupants are typically exempted for anywhere from one year up to when the units are sold or transferred. Do not exempt units beyond the time when the existing unit owners move out.
The obvious problem with temporarily exempting units is that involuntary exposure to secondhand smoke will likely continue. It is a good practice to require existing unit owners who register to allow smoking in their units to be responsible for any smoke that drifts from their units into common areas or neighboring units.
What smoking materials are covered?
The standard definition of smoking includes any product or substance that is combusted and inhaled including marijuana. Some condominiums also prohibit electronic cigarettes and other vape products because of concerns about the emissions from these products and the smell. State law prohibits smoking and vaping of any kind in a condominium’s indoor common area.
What is the implementation process for outdoor common areas?
The Trustees, without a vote of the unit owners, may establish no-smoking rules for outdoor common areas. This authority stems from the fact that the trustees are responsible for maintaining and establishing rules for the common areas.
Exclusive use common areas are sometimes treated differently. Exclusive use common areas include areas located outside a unit but are only available for use by the owners of that unit, such as a unit deck. Exclusive use common areas are sometimes governed like common areas and sometimes like units, meaning that a full vote of the ownership (as described below) is required to make the exclusive use common areas non-smoking. Check your condominium documents and find out how your exclusive use common areas are governed.
What is the implementation process to make inside units non-smoking?
Prohibiting smoking inside units requires an amendment to the condominiums master deed or bylaws. The procedure for amending each of these documents is explained in the document itself. Copies of these documents are available in the registry of deeds in the county where your condominium is located.
In general, the process for amending a master deed or bylaws requires the following steps. First, a majority of the trustees must vote in support of amending the documents. Next, a super majority of the ownership must vote in support. The exact percentage of the super majority of units owners who must vote in favor of an amendment is specified in the condominium’s master deed and bylaws. The percentage typically ranges from 60% to 70%. When both groups voted in favor, the trustees recorded the amendment at the county registry of deeds. The amendment is effective upon the date it is recorded. It is good practice to notify all unit owners and other residents such as renters immediately after recording the amendment.
Remember the condominium documents describe the minimum process for amending your condominium documents. A successful vote requires putting in the extra effort to get out the vote.
What are some tips for the voting process?
Focus your efforts on engaging the unit owns in the voting process. Hold meetings, discuss the benefits of becoming no smoking, distribute information on the process all before the voting starts. Make the actual voting as easy as possible, for example, by circulating ballots and allowing electronic signatures. Recruit volunteers to help you get out the vote. Keep the vote open for a month or more so that everyone has an opportunity to vote. Make sure to cover the minimum required steps for the voting listed in the master deed or bylaws, depending on which you are amending.
What happens after the voting?
If you received enough votes to amend your master deed or trust, an amendment signed by the trustees is recorded at the registry of deeds. It is also a good idea to send a notice to all unit owners that the condominium has become no smoking.
What about enforcement?
Putting the effort into educating unit owners during the voting process will help with enforcement. Unit owners are less likely to perceive the no smoking policy as arbitrary, and thus, less likely to ignore it. Hearing a neighbor’s experience about involuntary exposure to drifting smoke in the home can be very persuasive.
Existing unit owners who wish to be exempted, if allowed under your no smoking policy, should register their names and unit numbers with the trustees.
The typical enforcement mirrors the enforcement used for any other violation of the master deed or bylaws. It starts with a written warning from the trustees, and if the violation continues, fines assessed against the noncompliant unit owner. If unpaid, the fines can become a lien on the unit, subject to a collection process outlined in the state statute at M.G.L. c. 183A, §6.
Evidence of smoking may include smelling or seeing smoke immediately outside a unit door. The person investigating the matter (e.g., a trustee or management staff) after receiving a complaint, would smell and look at different areas in the hallway to identify where the smell or appearance of smoke is most pronounced, like listening in response to a noise complaint. Repeat the process a few times. There are several smoke monitoring devices commercially available if smell test is inclusive.
For more information or questions on how to implement a no-smoking rule, call the Massachusetts Smoke-Free Housing Project at (617) 373-2026.