On Wednesday, I posted an updated article on whether associations can restrict smoking in the units. Coincidentally, the City of Belmont, in the South Bay area (half way between San Francisco & San Jose) adopted a smoking ordinance a few weeks ago, that among other things, prohibits smoking in individual units and the patio/yard areas of multi-unit residences (apartments, condominiums, and townhouses) which share common floors and/or ceilings with at least one other such unit. The new law will become effective next month on November 2, 2007, but the provision prohibiting smoking in units of multi-unit residences would not become effective until 14 months thereafter or until the legal occupants vacate the unit. The San Jose Mercury News has identified this law as the first that prohibits smoking in one’s own home.

In addition to prohibiting smoking in units, the law establishes non-consensual exposure to second-hand smoke as a nuisance and trespass. This provision, if valid, would allow individuals to sue for nuisance without having to prove the the level of second-hand smoke was an unreasonable interference of real property rights.

There has been a lot of furor about the new law and it points to the difficulty of regulating smoking in a unit whether by an association or the government. The concept of “my home is my castle” clashes with the ability of governmental and associations regulating conduct for the collective good. I anticipate that more laws similar to the Belmont California ordinance will be considered by other city councils and state legislatures. Already several of our community association clients have adopted bylaw amendments restricting smoking in all or part of the units.