Smoking Bans Made Easy For Condos/POAs with New Law

Question: Do you have an update on the smoking ban bill you wrote about earlier this year?

Answer: Virginia House Bill 1842 (link) was signed into law by Governor Northam on March 18 2021 and became effective July 1 2021. The bill has major implications for owners of Condominium and Property Owners Associations (condo and POA) by giving the Association’s elected Board the ability to ban smoking inside homes and on private balconies by way of a new resolution to the rules and regulations, which generally requires a simple majority vote of the Board.

Prior to this, Boards could ban smoking in common areas this way, but smoking bans within units/homes required a lengthy (multiple years), costly, and resource intensive effort to get a 2/3+ vote from owners to change the by-laws.

I spoke with attorney Michael C. Gartner, a Partner at Whiteford, Taylor, & Preston LLP and current President of the Community Associations Institute (CAI) Washington Metro Chapter, about the new law to make sure I was clear on the implications this has for Virginia condos and POA communities.

Mr. Gartner confirmed that the new law, effective July 1 2021, does in fact allow condo and POA Boards to ban smoking inside private residences with a simple majority vote of the Board. He also offered some helpful advice and caveats for any Boards/communities who plan to move forward with in-unit smoking bans:

  • In rare cases, some by-laws may specifically restrict a Board’s ability to make certain rule changes or require something other than a simple majority, so Boards should have an attorney review their by-laws prior to proceeding with a smoking ban
  • Smoking bans should be written as a compliant resolution through legal counsel, not as a simple motion
  • Enforcement is always a challenge for Boards (noise, trash, and other common rules always present enforcement challenges) and Boards may want to work with their legal counsel to establish compliant enforcement protocol
  • The new law includes a provision that allows owners to call a special meeting to vote and repeal a change in the smoking policy
  • Smoking ban policies might flip back-and-forth as new Boards are elected and the majority votes for a new/different smoking policy than the previous Board

I’m not aware of any other state that has passed legislation like this (please comment if you know of other similar laws) in the rest of the Country, which is amazing, considering Virginia’s political and economic history, that we may be the first state with this type of law.

It will also be interesting to see how the law holds up if/when it is challenged in court. Until then, however, Boards now have the ability to ban smoking within homes, on private balcony/outdoor spaces, and in all common areas by simply majority (except in the rare case by-laws restrict it).

If you would like assistance with reviewing your by-laws, drafting a smoking ban resolution, and/or create compliant enforcement policies (or any other legal needs for your Association) you can contact Mr. Gartner directly at 703.280.9267 or mgartner@wtplaw.com. His firm, Whiteford, Taylor, & Preston, LLP, has one of the largest and best-regarded community association practices in the mid-Atlantic region, representing more than 800 condominiums, planned communities and housing cooperatives, of all sizes and types, in Maryland, Virginia, the District of Columbia and Delaware. Their Community Association Section is made up of approximately 30 attorneys and an experienced professional support staff.

If you’d like to discuss buying, selling, investing, or renting, don’t hesitate to reach out to me at Eli@EliResidential.com.

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