Imposing Smoking Bans

Ganfer & Shore
Matthew J. Leeds,
Partner

Over the past year, several clients have joined an emerging trend of the many associations that are considering pre-emptive measures that would require that unit-owners across-the-board cannot smoke in the building, even inside their own apartments. Whether because of local law or because of the election of a particular co-op or condo, it has become very common for buildings to limit smoking in public areas. Now, this next step has become the talk of the industry. Many feel that boards frequently have had to deal with complaints from owners that excessive smoke is migrating from inside other owners’ apartments, and now feel that the only solution is to go the next step. Before resorting to a total ban, we have seen management explore physical measures, such as installing air purifiers or adding insulation or plugging holes in walls (even just from cabinets that have been hung), often at the expense of the smoker. Sometimes, a solution can be brokered for the smokers to limit the locations in their own apartments where they smoke to minimize the migration of smoke. Sometimes, there are fines. Sometimes, there are private actions for nuisance or otherwise by one owner directly against the smoking neighbor. In one instance, a board sought an injunction against a smoker who refused to cooperate with any helpful measures (and, of course, the behavior was also held as a default under the proprietary lease that could lead to cancellation of the shares and lease).

Legal Lesson

When a building is interested in a total ban, what does the board do? It looks into an outright ban on smoking, even within apartments. Management will examine if this is politically of interest to the building. This can include informal surveys and “town meetings.” They will usually consider how value might be affected: do more people want to avoid limiting the universe of potential purchasers, or do they feel that there is additional value in a smoke-free building? The attorneys should look for the authority to act. This is usually found in the constituent documents of the building: the proprietary lease in a co-op and the bylaws in a condo. Often, it is necessary to amend these, typically involving a vote of a supermajority of owners.