smoking ban

Has Your Condo/POA Banned Smoking?

elieliresidentialcom Arlington, Buyer, Home Owner, Seller , , , , , , 0 Comment
Has Your Condo/POA Banned Smoking?

Question: Do you know if Associations in Virginia have begun banning smoking using the new law?

Answer: Last year, I wrote an article about Virginia’s new law that allows Condo and Property Owners Associations to easily ban smoking inside units/homes via a new resolution to the rules and regulation, which generally requires a simple majority vote by 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 have heard from a couple of Condo Associations that have implemented this new law to ban smoking and I would love to hear from other readers, in the comments section or in email, who have either passed a new smoking ban resolution, are in the process of doing so, or have run into challenges trying.

Last year I spoke with attorney Michael C. Gartner (703.280.9267 or mgartner@wtplaw.com), 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

Last week, I followed up with Mr. Gartner on the new law and he said that he has several clients (condo buildings) considering implementing a smoking ban and so far is not aware of any legal challenges or considerations that would change the opinions he shared last year when the bill was approved.

Please use the comments section or email me if you are in an Association who has taken advantage of this new law or is planning to!

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

If you’d like a question answered in my weekly column or to discuss buying, selling, renting, or investing, please send an email to Eli@EliResidential.com.

Video summaries of some articles can be found on YouTube on the Ask Eli, Live With Jean playlist.

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

Smoking Bans Made Easy For Condos/POAs with New Law

elieliresidentialcom Arlington, Home Owner , , , , , 1 Comment
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.

Condo Smoking Bill Passes in Virginia

elieliresidentialcom Arlington, Buyer, Home Owner , , , , 2 Comments
Condo Smoking Bill Passes in Virginia

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

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

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

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

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

Here is a link to details about the bill and the full summary below:

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