smoking

An Association Can Prohibit Smoking

In Common Area

Any association may prohibit smoking in the common areas by adopting a rule because an association has responsibility for the management of the common areas and has fairly broad authority to adopt rules governing the common areas.

In Dwellings

To prohibit smoking within the individually-owned dwellings:

By rule:

A community association board may adopt a rule prohibiting smoking within attached dwellings (e.g., townhomes), if smoking in a dwelling creates the potential for smoke to enter another lot owner's dwelling, the common areas, or limited common areas.  Utah Code Section 57-8a-218(6)(b).

A condo association board may adopt a rule prohibiting smoking within the units if the CC&Rs or bylaws grant the board the authority to do so.

Otherwise, a condo association board may adopt a rule prohibiting smoking within a particular unit where tobacco smoke drifts into any residential unit from that unit two times or more per week for two weeks in a row, and if the board determines that such smoke creates a condition that is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.  Utah Code Section 78B-6-1101(3).  

Additionally, a condo association board may adopt a rule prohibiting smoking within all units relying on Utah Code Section 78B-6-1105 which states

The Legislature finds that environmental tobacco smoke generated in a rental or condominium unit may drift into other units, exposing the occupants of those units to tobacco smoke, and that standard construction practices are not effective in preventing this drift of tobacco smoke.  (3) The Legislature further finds that persons who desire to not be exposed to drifting environmental tobacco smoke should be able to determine in advance of entering into a rental, lease, or purchase agreement whether the subject unit may be exposed to environmental tobacco smoke.

However, whether that statute is sufficient authority for a condo board to adopt a rule prohibiting smoking in the units has not been tested in Utah courts.  Thus, there is a small chance that a court could find that a condo board must have specific authority to adopt a rule prohibiting smoking within an individually-owned unit, that this statute does not sufficiently grant such authority, and that therefore a condo board does not have the authority to adopt such a rule.  Overall though, the authority and justification for a condo board to adopt such a rule is quite strong because of the Utah Legislature's finding that a buyer of a condo unit "should be able to determine in advance whether the unit may be exposed to environmental tobacco smoke" and a prohibition on smoking within all units provides certainty to buyers that a unit will not be exposed to tobacco smoke.

By amendment to the CC&Rs:

Any association may prohibit smoking in the individually-owned dwellings and common areas by properly adopting an amendment to the CC&Rs.  See, e.g., Utah Code Section 57-8-16(7)(b).

Statutes and Cases:

(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)

57-8-16. Contents of bylaws
57-8a-218. Equal treatment by rules required -- Limits on association rules and design criteria
Nuisance - Utah Code Title 78B, Chapter 6, Part 11