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07/27/2017 : Condo owners can try to enact restriction on smoking inside units

By Benny L. Kass

July 27, 2017

A contiguous owner in a three-level apartment-style condo caused a fire in her unit while smoking in bed. The ashes ignited bedding while she was breathing through her medically necessary oxygen tubes. She: (1) smoked in bed, (2) fell asleep and (3) was attached to oxygen tubes. The combination of all three is unsafe. Her normal cigarette smoke discharge enters units above hers.

How can a condo board deter or prevent such behavior that presents grave safety risks to all condo residents? Is it possible to declare the condo nonsmoking. - Al

Smoking - which now includes marijuana - is the hot-button issue today in almost every community association throughout the country.

You can't stop stupid people from doing stupid things. I hope the smoker - if she survived - has learned an important lesson. But the association cannot be the hand-holder of each and every unit owner.

However, you can restrict smoking of any kind in the common elements as well as in the units. While some of my lawyer friends believe the association can enact a rule prohibiting smoking in the common areas, I believe that the safe harbor is to get a bylaw amendment on this issue. I recognize that it often is very difficult to enact bylaw amendments.

To restrict smoking in units, you have to amend not only the bylaws but also the declaration. Such a restriction will be controversial, which is why the declaration should be amended. Now would be a good time to present such a proposal, because owners may be concerned there may be yet another fire resulting from smoking.

Case law around the country is very clear: Community association owners are legally bound not only by the legal documents in effect when the owner took title but also as to any properly enacted amendments to the legal documents in the future.

The president of our condominium association acts alone and has previous members of the board on the bank account of the association. He has been on the board for more than three years. He harassed all the secretaries and treasurers that had been elected by the unit owners.

The president doesn't have meetings with the board or include them in any decisions for projects, nor does he let the treasurer handle the money. He also is a custodian/ janitor and he pays himself a $800 per month.

Please, we need help. Where should we report this without hiring an attorney.

I am the current secretary for the association but the president doesn't even talk to us. He buys apartments from owners who are behind with the association dues. He owns five apartments in a 20-unit building, and he comes to the meetings with his votes plus with proxy votes from the owners who are renting out their units. - Ana

My first reaction was you gotta be kidding. But then I remembered reading "Escaping Condo Jail" by Sara E. Benson and Don DeBat, so my next reaction was welcome to the wonderful world of condo living.

Are you the only one concerned about this? Have you talked with other owners to see if you could mobilize a group that would start to challenge the president? Have you advised the absentee owners of these problems so they would no longer give the president their proxy?

The best approach, in my opinion, is to try to throw the rascal out of office. Your bylaws contains the procedure for recalling an elected board member. Keep in mind that the board can terminate an officer but only the unit owners - in the percentage of vote required by your legal documents - can remove a director.

If you can prove even only half of the facts in your question, there is a strong case that the president is breaching his fiduciary duty to the association.

So why don't you want to get an attorney? A lawyer can help, and I suspect that most lawyers would relish filing a suit against the president.

Contact the Community Association Institute ( caionline.org ). That's a national association that represents community associations across the country. There are local chapters, and you will get some names of local attorneys who practice community association law. I strongly recommend you talk to a lawyer as soon as possible.

You are the secretary of the board. You also have a fiduciary duty to the association, and in my opinion, that duty requires you to take immediate appropriate action to remove the president - either by vote of the membership or by court order.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to blkass@kmklawyers.com.

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