I rent an apartment and the rule of the multi-unit development (Mud) board forbids smoking, but my lease with my landlord does not. Does the Mud board have the right to tell me I cannot smoke in my own apartment? If so, what consequences could there be?
An owners’ management company (OMC) for a multi-unit development is entitled to make house rules for that development. The Mud Act says that an OMC may make rules for “the effective operation and maintenance of the development and with the objective of enhancing the quiet and peaceable occupation of units”.
House rules must be consistent with the lease agreements that owners signed when they purchased their units, and the rules must balance the rights and obligations of owners and occupiers. Other than initial house rules made before any units are sold, amendments to rules or the adoption of new rules must be approved by the owners at a general meeting. In any Mud, the house rules should form part of letting agreements between owners of units and their tenants.
As such, there is no doubt that the OMC has the right to ban smoking in the common areas outside your unit, such as in corridors, entrance areas and so on.
As regards a prohibition on smoking by residents inside their apartment, you mention “the rule of the Mud board”. A first step would be to verify the status of this. Is this one of the formal house rules of the OMC and if so, when and how was it adopted? Or is it simply a request from the OMC board or the managing agent?
You should separately ask your landlord to check the lease agreement they signed with the OMC. Does the lease or any other underpinning document of the OMC say anything about smoking inside apartments and did the landlord sign up to anything in this regard when they purchased the unit?
If the OMC is acting following a complaint from another resident, it could be that this has arisen due to smoke escaping under the front door of your unit or via another route. Some people are very sensitive to such smoke. If this is the case, then practical changes (to the bottom of your door, for example) might prevent this. If you are smoking on a balcony, you should be sensitive to neighbours. Cigarette butts should never be discarded in the common areas.
In my experience, it is rare for an OMC to prohibit smoking inside apartments. Smoking is not against the law and, if there is no impact on neighbours, it seems like an over-stretch for an OMC to develop a house rule in this regard. One could certainly make a case that such a rule does not fairly balance the rights and obligations of the different stakeholders.
However, there may be specific circumstances that have led your OMC to such an approach.
More broadly, a characteristic of any good house rule is that it should be enforceable. This is important to allow an OMC to enforce the rule. In this case, there may well be challenges to an OMC in proving that a resident has, in fact, been smoking inside their unit.
If the OMC tells you that this is a properly adopted house rule, then, other than going down the legal route, an option open to the owner of your unit may be to propose a change to this rule. If the landlord wishes to do this, they should contact the OMC board, or their agent, as regards the process for this and then make their case to the other members of the company for such a change.
Finbar McDonnell is a chartered property manager and a member of the Society of Chartered Surveyors Ireland
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