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

[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?

[Greg M.]

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.