2024 IL App (1^st) 230358

The Illinois Appellate Court affirmed summary judgment in favor of a condominium association and a neighboring unit owner in a lawsuit alleging secondhand tobacco and marijuana smoke infiltration. The plaintiffs claimed the association breached its fiduciary duty by failing to address their complaints and that the neighboring owner created a private nuisance. The court found that the building’s rules expressly permitted smoking within units so long as it did not create a nuisance or unreasonable disturbance, and the plaintiffs failed to present sufficient evidence that any smoke infiltration rose to an objectively unreasonable level. This case reinforced that condominium boards should investigate and document resident complaints, but they are not required to take enforcement action without evidence of a rule violation. It also highlights the difficulty of prevailing on smoke-related nuisance claims where smoking is expressly permitted under a community’s governing documents.

Takeaways:

• The record showed that the association repeatedly investigated the complaints, inspected units, communicated with residents, and attempted remediation measures, but was unable to independently verify a rule violation. The court found no basis to conclude the association breached its fiduciary duty.
• Although the plaintiffs testified that they smelled smoke and believed it came from a neighboring unit, the court emphasized the need for objective evidence showing an unreasonable interference with the use and enjoyment of the property. The plaintiffs lacked sufficient admissible evidence proving such a nuisance existed.
• The condominium’s rules expressly allowed smoking within units unless it created a nuisance or unreasonable disturbance. Because smoking itself was not prohibited, the plaintiffs had to prove the smoke infiltration exceeded what a reasonable person would be expected to tolerate in a multi-unit residential building, which they failed to do.