Cigarette smoking is no longer as prevalent in U.S. society as it once was, and the percentage of adults that smoke has declined significantly over the past fifty years. According to the American Lung Association, cigarette smoking in the United States has fallen from 42.6% of adults in 1965 to 13.7% of adults in 2018. Even recent trends suggest that the percentage of adults who smoke continues to rapidly decrease, with a 23 percent reduction in the percentage of adults that smoke between 2013 (17.8% of adults) and 2018 (13.7% of adults). In addition, the quantity of cigarettes smoked by those that smoke has likewise continued to decrease. Between 1974 and 2018, the percentage of smokers who smoke more than 24 cigarettes a day has decreased 76 percent, from 25% of smokers to just 6% of smokers. In addition, smoking is regulated within the State of Michigan. Under the Dr. Ron Davis Smoke Free Air Law, MCL 333.12603, smoking is prohibited in public places in Michigan.
As a result of the overall decrease in cigarette use, and the 2009 ban on smoking in indoor places, Michigan residents encounter cigarette smoke, and cigarette smokers, on a much less frequent basis than ever before. And with the percentage of non-smokers higher than ever before, some residential condominium communities want to ban smoking altogether within their condominium. Notwithstanding the decrease in the percentage of adults that smoke, and the adoption of the Dr. Ron Davis Smoke Free Air Law, however, smoking is still largely a legal activity and condominium associations that seek to ban smoking should be aware of the limitations on their authority to adopt such a prohibition.
Regulating Smoking Under the Condo Bylaws
Under the Michigan Condominium Act, MCL 559.101, et seq., (the “Act”), a condominium association of co-owners is responsible for administering the condominium. MCL 559.103(4). A condominium project itself is comprised of two broad classifications of property: (1) common elements; and (2) condominium units. A condominium unit is defined as “that portion of the condominium project designed and intended for separate ownership and use . . . .” MCL 559.104(3). In general, and subject to certain limitations, a unit co-owner has exclusive use and possession of their unit and may use their unit in any lawful manner that does not violate the condominium bylaws.
Under the Act, the “administration of a condominium project shall be governed by bylaws recorded as part of the master deed, or as provided in the master deed.” MCL 559.153. Condominium bylaws constitute restrictive covenants regarding the use of property. Village of Hickory Pointe Homeowner’s Ass’n v Smyk, 262 Mich App 512; 686 NW2d 506 (2004). One of the principles of Michigan jurisprudence is that “Michigan courts construe restrictive covenants ‘strictly against those claiming to enforce them, and all doubts [are] resolved in favor of the free use of the property . . . .” Moore v Kimball, 291 Mich App 455; 289 NW 213 (1939). Condominium bylaws contain restrictions which limit a co-owner’s use of their unit, often regulating such areas as rentals, pets, vehicles, parking, and noise. As stated in Moore, if a restriction is to be enforced against a co-owner, the restriction needs to be specifically stated in the bylaws or “all doubts” will be resolved in favor of free use of the unit by the co-owner.
In addition to the restrictions contained in the master deed and bylaws, Michigan law also provides that “a condominium association has an implied power to adopt reasonable rules to govern the use of common property except as limited by statute or the condominium documents.” Hunters Woods Site Condominium Ass’n v Homes of Hunters Woods Condominium Ass’n, Inc, 2011 WL 2022960 (Mich Ct App May 24, 2011) (citing 2 Restatement Property (Servitudes), 3d, § 6.7(1), p 140)). In most instances, this rule-making authority is expressly stated in the bylaws.
This rule-making power provides the association with some flexibility in regulating co-owner activities within a condominium, but it is not without its limits. With respect to an association’s rule-making power, the Michigan court of appeals has held that an association may “promulgate rules interpreting the covenants and restrictions and setting the procedures governing its own enforcement of those covenants and restrictions.” Conlin v Upton, 313 Mich App 243, 265; 881 NW2d 511 (2015). An association may not, however, “expand [a] restriction or impose a new burden on the lot owners with less than unanimous consent under the guise of interpreting the restriction.” Conlin, 313 Mich App at 265 (citing Golf View Improvement Ass’n v Uznis, 342 Mich 128, 130–131; 68 NW2d 785 (1955) (“We do not accept this round-about interpretation of the restrictions to fix a minimum area when it could have been expressed directly in so many words. We conclude that it would have been so expressed had that been the intent of the subscribers.”)).
Under these principles, an association’s authority to regulate a co-owner’s use of their unit must be based on a restriction contained in the condominium bylaws, or on a reasonable rule or regulation properly interpreting or implementing an existing restriction. An association may not impose a restriction not contained in the bylaws nor adopt a rule that imposes a new burden under the guise of interpreting an existing restriction.
With respect to smoking, although the Dr. Ron Davis Smoke Free Air Law, MCL 333.12603, prohibits smoking in public places, it does not prohibit or regulate smoking within a private residence. Accordingly, if a condominium association is looking to try to prevent smoking within co-owners’ units, then the association must look to the terms of its condominium bylaws and any prohibition or limitation must satisfy the analysis required by Moore, supra, and Conlin, supra, described above.
Recently, the Sixth Circuit Court of Appeals conducted such an analysis and ruled that a smoking ban will not be inferred or implied in restrictive covenants for a plaintiff, and that “[u]nless the bylaws plainly cover the challenged in-condo smoking, [plaintiff] must lose.” Davis v Echo Valley Condominium Ass’n, 945 F3d 483, 493 (6th Cir 2019). In Davis, the Court of Appeals specifically rejected the argument that the smell of cigarette smoke, standing alone, constitutes a nuisance and limited the potential application of a bylaws “nuisance” provision to “activities that most residents would reasonably find significantly bothersome – in contrast to the activities that can be ‘generally expected’ in a condo complex.” Davis, 945 F 3d at 494. Under the legal framework set forth in Davis, and consistent with the principles described in Moore and Conlin, if smoking is not prohibited within a condominium, then the smell of cigarette smoke should reasonably be expected and is not, therefore nuisance.
For the above reasons, while an association should be considered to have the authority to adopt rules and regulations restricting or prohibiting smoking within the common areas of the condominium, unless the condominium bylaws specifically address smoking, a condominium association does not have the authority to ban smoking within a unit nor to adopt rules and regulations which ban smoking within a unit.
If an association wishes to prevent or regulate smoking within a unit, then the association would need to amend its bylaws to add language to the bylaws which prohibit smoking pursuant to the procedure set forth in MCL 559.190(2). Under MCL 559.190(2), the bylaws of a condominium “may be amended, even if the amendment will materially alter or change the rights of the co-owners or mortgagees, with the consent of not less than 2/3 of the votes of the co-owners . . . .”
A condo association that seeks to ban or restrict smoking within a co-owner’s unit must first review their bylaws to determine whether the bylaws expressly prohibit or restrict smoking within a unit. While the association may adopt rules regarding smoking in the condo common areas, if the bylaws do not expressly restrict or ban smoking within a unit, then the association will need to seek to amend its bylaws by a vote a 2/3 vote of the co-owners. An association that seeks to pursue such an amendment should contact legal counsel to properly conduct the vote.
Matthew W. Heron is a Member at Hirzel Law, PLC where he concentrates his practice in real estate, community association law, condominium law, real estate litigation, and zoning and land use. Mr. Heron also has extensive experience in a variety of litigation matters, including insurance coverage, non-compete agreements, automotive supplier disputes, and breach of contract. He routinely appears in both federal and state courts throughout Michigan and has argued before the Michigan Court of Appeals and the Court of Appeals for the Sixth Circuit . He can be reached at (248) 397-6596.