HOA votes to bylaws change bans smoking but a renters' lease

Member since 2023 · 21 posts · 2 votes

Hey everyone, I'm an owner in a tiny HOA in Florida and the owners want to either ban smoking entirely or make a designated area. Only one tenant smokes and it fills the other units quickly. Unfortunately they refuse to not do it on the outdoor balcony despite other residents' verbal requests. All residents but the smokers have lost use of their balconies and keep windows closed now. My question is:

If the HOA changes the bylaws to ban smoking (which they plan to vote on), and the lease held by the smoking tenant only specifies no smoking "within the unit," is there any legal recourse for the smoking tenant? If so, are there legal ramifications for the HOA board or voting members?

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Greg M.

Rental Property Investor · Los Angeles, CA · Member since 2017 · 2k+ posts · 5k+ votes

Your local laws are going to prevail. FL seems to have reigned in HOAs recently, so who knows what they are allowed to do.

I know that in CA, an HOA can ban smoking in units because smoking is not a protected class and the HOA has an interest in the safety & health of the building.

I'm not sure why "within the unit" is not being interpreted to include the balcony. If you own the balcony (check CCRs, I have a unit where I don't own my private balcony) then it is all part of the unit.

As an owner, you're on the hook for the actions of your tenant. If they smoke, you'll get fined. I'd talk to the tenant now. Let them know that the HOA is planning on banning smoking on the entire premises. Let them know that they may wish to look for another place if that is going to be an issue.

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Ericka Parrott
Residential Real Estate Agent · Atlanta, GA · Member since 2009 · 381 posts · 134 votes
1y
Hi Jessica, if they ban smoking, I believe it will be legal and life for the smoking tenant will quickly become unbearable. They are sure to move on at the end of their lease term.
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Theresa HarrisPro Member
Member since 2019 · 15k+ posts · 11k+ votes
1y
Does the lease also state that the tenant must follow the HOA rules? If so, then they need to follow whatever the changes are. I don't think the HOA can restrict what a tenant does within their own unit (the lease can), they can prevent activities in common areas.
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Patricia Steiner
Real Estate Broker · Hyde Park Tampa, FL · Member since 2019 · 2k+ posts · 3k+ votes
1y
Let's cut to the chase: "

A tenant is obligated to follow HOA rules, as they are considered residents of the community and must abide by the same restrictions as homeowners, even though they do not own the property; the landlord is responsible for ensuring their tenants understand and comply with the HOA rules. (End)
Don't apologize, don't sugar coat the message - just give them the statement above, in writing. You can acknowledge their right to smoke but they do not have the right to do it on the property.
Fun, huh?
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Greg M.
Rental Property Investor · Los Angeles, CA · Member since 2017 · 2k+ posts · 5k+ votes
1y
Your local laws are going to prevail. FL seems to have reigned in HOAs recently, so who knows what they are allowed to do.
I know that in CA, an HOA can ban smoking in units because smoking is not a protected class and the HOA has an interest in the safety & health of the building.
I'm not sure why "within the unit" is not being interpreted to include the balcony. If you own the balcony (check CCRs, I have a unit where I don't own my private balcony) then it is all part of the unit.
As an owner, you're on the hook for the actions of your tenant. If they smoke, you'll get fined. I'd talk to the tenant now. Let them know that the HOA is planning on banning smoking on the entire premises. Let them know that they may wish to look for another place if that is going to be an issue.
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Chris SeveneyBusiness Member
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Investor · VA · Member since 2015 · 21k+ posts · 19k+ votes
1y
Quote from @Jessica Young:

Hey everyone, I'm an owner in a tiny HOA in Florida and the owners want to either ban smoking entirely or make a designated area. Only one tenant smokes and it fills the other units quickly. Unfortunately they refuse to not do it on the outdoor balcony despite other residents' verbal requests. All residents but the smokers have lost use of their balconies and keep windows closed now. My question is:
If the HOA changes the bylaws to ban smoking (which they plan to vote on), and the lease held by the smoking tenant only specifies no smoking "within the unit," is there any legal recourse for the smoking tenant? If so, are there legal ramifications for the HOA board or voting members?

great advice provided - what I will add to this is if you have smokers and its not allowed I would offer to allow them out of the lease with no penalty.
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Tim Baldwin
Attorney · Pensacola, FL · Member since 2023 · 178 posts · 106 votes
1y
The lease should have a provision that requires the T to comply with HOA rules. Other lease provisions may apply as well, such as prohibition against causing the LL to incur fines and damages. Using such provisions, you can enforce the HOA prohibition.
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