Second-Hand Smoke

Frank Lovece, a freelancer writer, is a co-op owner. The author of a number of books, including The X-Files Declassified, he wrote “The Whole Wired World,” about internet connections, in the October issue.

The smoking gun has fired a shot. And co-op and condo boards might not be able to dodge the bullet.

On August 24, 2006, a Manhattan Civil Court judge ruled a case could go to trial in which condo renters – subjected to second-hand smoke from neighbors and getting no help from their unit-owner landlord – moved out before their lease expired. The landlord now wanted a summary judgment for the remaining months’ rent.

That’s when the judge cocked a gun: he said there was no question that second-hand smoke was a habitability issue – “as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, water leaks, and extreme dust penetration.” The only questions he had were about the particular facts in this case, so he ordered a hearing to determine them. But there was no question, he ruled, about the issue of law: landlords must deal with second-hand smoke the same as they do with those other conditions (for more on the case, see “Where There’s Smoke, There’s Ire,” p. 14).

The ruling has rumbled from the law journals to the daily papers, even though the case in and of itself isn’t the final word. “There’s been no final determination,” says attorney Richard Siegler, a partner at Stroock & Stroock & Lavan and an adjunct professor at New York Law School. “The court said there is a cause of action [regarding second-hand smoke], but probably nothing will be certain until you see an appellate decision.”

So, should co-op and condo boards be unconcerned about this particular case, which could spend the next two or three years in court with an uncertain outcome? Or should they take a deep breath and prepare for when the smoke clears, anticipating that current anti-smoking trends will continue to gain momentum?

When the facts are in flux, you always have multiple options. You don’t want to overreact – “You can’t go running to amend your house rules and regulations every time there’s a court case,” cautions building manager James Goldstick of Mark Greenberg Real Estate – but you can’t just ignore the issue, either. Case law is like the pigeon: first, there’s one pecking at something, then another one flies in, and pretty soon, you’ve got a whole flock.

“By the time these cases get decided, four or five years pass, and another 50 cases are in the pipeline,” says attorney James Samson, a partner at Samson Fink & Dubow. “Do you want to be the building that has waited four or five years to deal with this decision?”

Ari Mintz, president of the 120-unit cooperative at 300 West 108th and 300 West 109th Streets, suggests that old-fashioned civility remains the first line of defense. “As a board member, you always want to encourage people to work things out among themselves, because in the long term, that makes for a better arrangement than forcing a solution on people or getting a third party involved. Most people are reasonable,” he says, “even in co-ops. Most people – if you say, ‘Hey, I got kids, I got asthma, can you help me out here?’ – they will go to the hardware store and get an [air] filter.”

Attorney Siegler isn’t so sure. “Boards can no longer treat second-hand smoke complaints as a minor nuisance or annoyance, or say to the neighbors, ‘Work it out between yourselves.’ Boards now have a responsibility to deal with it as a health issue. The stakes have been raised.”

Surgeon General’s Warning

To understand why, and get a handle on where the issue’s going, it helps to take a minute to get the bigger picture. Last June, U.S. Surgeon General Richard H. Carmona issued a report concluding that there is no risk-free level of exposure to second-hand smoke – that’s no, nada, none – and that nonsmokers regularly exposed to it increase their risk of heart disease by 25 to 30 percent and increase their risk of lung cancer by 20 to 30 percent. Keep in mind that this is George W. Bush’s surgeon general. For an administration that doesn’t believe in global warming, and only grudgingly in evolution, this was a big deal.

And it came on the heels of antismoking trends nationwide. Aside from dozens of court cases around the country in which judges ruled for people suffering from second-hand smoke, the issue has become a player in the real estate market. From Logan, Utah, to Pensacola, Florida, to tobacco-land Raleigh, North Carolina, smoke-free co-ops, condos, and rental apartments are enjoying marketplace success. So are major hotel chains such as Westin Hotels & Resorts, which last January banned indoor smoking at all of its U.S. hotels, and Marriot, which made each of its 2,800 hotels smoke-free this past September.

“It’s a national trend,” says attorney Stuart Saft, head of the real estate department and a partner at Wolf Haldenstein Adler Freeman & Herz, who represented the 452-unit co-op at 180 West End Avenue, near Lincoln Center. In 2002, the board tried to require new buyers to be non-smoking, but then reversed itself in the face of public backlash after the move – misinterpreted as an immediate, Draconian smoking ban – attracted worldwide media attention. Four years later, and after at least two Manhattan co-ops have since instituted the very same policy, Saft notes: “We’ve seen smoking banned in all public facilities and outdoor stadiums. Even internationally: in Paris, where everybody smokes, they’ve now banned smoking in public places.”

Smoke Gets In Your Eyes

If that’s the case, then how should you react as a board? The first step is to make sure you understand the laws already in place. We all know smoking is not allowed in elevators, for instance, but not everyone’s aware that the New York City Administrative Code prohibits smoking in a residential building’s public areas if the building has ten or more apartments. And while lighting up in the lobby of a smaller apartment house isn’t against city law, it can still be contrary to a co-op or condo’s house rules. “There’s a provision in all co-op proprietary leases I’ve seen, and most of the condo [bylaw] documents, that prevents odors from going from one apartment to the next,” says Saft.

Your building’s proprietary lease or bylaws, then, almost certainly already prohibit noxious odors. In addition, New York Real Property Law Section 235-b specifies a “warranty of habitability” in rental and co-op proprietary leases. There’s also what the courts call “the implied warranty of habitability,” meaning that residents are entitled to what the main section of 235 calls “the quiet enjoyment of the leased premises.” In the absence of other provisions, that means smokers have the right to smoke in their apartment, and non-smokers have the right for their home to be free from second-hand smoke.

“I don’t believe there’s a need to change any co-op rules because of this ruling since this is another example of the right to quiet enjoyment,” says board president Michael Connelly of the 168-unit cooperative at 173-175 Riverside Drive. “Odors emanating from cigarette smoke, or anything else, are a violation of the rules.” (Although not from just a single occurrence of smoke, as determined by a 1993 case called East End Temple vs. Silverman.)

“You don’t have to change your proprietary lease,” agrees attorney Samson. “There is sufficient provision in there already. I have trouble telling people they can’t smoke in their apartment, but the issue is [that their smoke] can’t migrate outside. If it migrates into common areas or another apartment, there’s a problem.” And one for which the co-op may be liable.

But only, at this stage, if the board has been notified. As it now stands, a board isn’t required to measure or to seek out second-hand smoke leakage unless there has been a complaint. It’s not like lead paint or window guards, in which the city requires active surveying of residents and information to be filed.

If you do get a complaint that a resident’s cigarette smoke is seeping into another’s apartment, act quickly; an eyesore in a building isn’t looked at constantly, and loud music isn’t played 24 hours a day, but smoke stays, and lingers, and gets in people’s clothes, furniture, and lungs. There’s nothing like breathing a constant irritant to get a resident’s hackles up – and increase the likelihood of hot tempers and hotter lawsuits.

The Nose Knows

Whether a complaint comes in directly from a resident or through a staff member who the resident has informed, the first thing to do after acknowledging the complaint is to ascertain the facts: go down and take a whiff. Do it at a time when the complainant says he or she smells the smell, and remember that since everyone’s sense of smell is different, you can’t necessarily judge by your own. Bring a couple of other board members along for consensus. (A super or other staff member, understandably, might not want to get in the middle of a dispute between tenants.)

Once confirmed, the next step is to speak with the smoker – who might not even be aware of the problem. Since many smokers feel embattled, given the growing anti-smoking trend, some co-op and condo professionals advise keeping the peace with some low-cost steps that the board can enact itself.

“Whenever the situation has arisen, we’ve advised the board to seal cracks [in both apartments], to open up the electrical outlets and light switches and put some insulation in, and if there’s central air conditioning, to change the filter,” says Saft. “These techniques have helped tremendously. If they don’t, since every building is different, we suggest the managing agent speak to the smoking individual and see if he or she can smoke at a window, or in a room not adjacent to the person who’s complaining. Or, they can ask the smoker to get a filtering mechanism,” such as a High-Efficiency Particulate Air filter, which is readily available for $40 and up.

“Seal every possible place where the smoke could be going between apartments,” advises Gerard J. Picaso, president of his namesake management company, ticking off the steps his buildings take when the issue – and the smoke – arises. “Seal where the pipes go through the walls, under the kitchen and bathroom sinks, inside the vents if there’s central air. Then, attempt to get the smokers to police themselves – having them get an air cleaner, or smoking only in one room away from common walls and the front door.”

“All of our buildings, at this point, handle it the way they’ve handled other noxious-odor complaints,” says Larry Vitelli, vice president of Douglas Elliman Property Management. “They’ll write a letter to the offending party, asking them to use an air purifier and also to not open their window [when they smoke], because that sometimes forces smoke under the door and into the hallway. Another thing we do [in such circumstances] is weather-strip the apartment doors.”

Not everyone agrees that the co-op itself should shoulder the burden. “I’d be very surprised if our board would decide to spend co-op money to cause people to do what they’re required to do under the co-op rules,” says Connelly, whose building has “virtually never, at least in my tenure, had any issue with odors, though we’ve periodically had issues with respect to noise, and we’ve always been able to handle that with simple conversation and consciousness-raising.”

Regardless, says Saft, “none of these [sealing and weather-stripping] steps are really expensive, and they show the board tried to do something.” While showing effort might or might not in itself be enough in the worst-case scenario of a lawsuit, it certainly doesn’t hurt, and the nominal expense might be worth it for time-and-effort savings in following up to ensure the work was done and up to code.

But what if you’re dealing with a militant smoker, or a disagreeable misanthrope, or simply some careless person who keeps letting second-hand smoke leech into other apartments and the common areas? Don’t laugh – that was precisely the situation with the smoking neighbors in the civil-court case that started all this. What do you do then?

Smoke Them Out

With a co-op, says Saft, your options are straightforward. “The co-op has control over what goes on in the apartments, the same as a rental building. At worst case, you could terminate someone’s lease for objectionable conduct. Otherwise, you can require things like alterations to seal the walls, or institute a fine structure and so on.”

A condo, he says, is a bit more problematic. “A condo is limited to what the condo bylaws say. The board can impose fines or, in the worst case, go to court to get an order precluding a unit-owner from being able to smoke in their apartment; providing the board had proof, it could probably get an order in a matter of weeks at the cost of a few thousand dollars. But it’s certainly not as easy an approach as a co-op has.”

Having a house rule specifically devoted to second-hand smoke can head off problems and keep the issue impersonal, particularly if such a rule were passed two or three years before an issue came up. Some boards reject potential buyers who smoke, which is legal since smokers are not a protected class or minority as defined by the U.S. Department of Housing and Urban Development.

Around the country, even condos are going smoke-free. Last August, for instance, the homeowners association board of the Blackhawk Condominium complex in Logan, Utah, banned tobacco use, citing smoking-related complaints about fire hazards, litter, health liabilities, and resale values.

In New York City, where a two-thirds majority of shareholders or condo-owners is generally needed to pass new proprietary lease amendments, boards can speak to the financial expense of second-hand smoke, which, aside from contributing to wear-and-tear, can leave soot stains or burn marks on public-area carpeting and walls, costing money to clean and paint. Cigarette odors also lower an apartments’ sale price; as June Iseman, a vice president and broker at Stribling & Associates, told The New York Times in August, when it comes to selling an apartment, “cigarette smoke is the kiss of death.”

And mentioning the fire hazard isn’t being alarmist. A September 2004 report by the National Fire Protection Association (NFPA) found that cigarettes “are the leading cause of fatal fires in the United States,” traceable to 25 percent of them in 1999, the most recent year studied. The NFPA said in March 2006 that cigarette-ignited fires kill 700 to 900 people annually, with thousands suffering burn and lung injuries and property losses totaling millions of dollars. One in four casualties is not the smoker, and many of the victims are children.

Saft himself remembers that when 180 West End Avenue had wanted to restrict new purchasers to nonsmokers, “somebody had died in a different building from smoking on a couch and falling asleep, a couple of months before.” (The New York Coalition of Social Smokers did not respond to an e-mail request for a spokesperson to be interviewed for this article.)

Boards can find resources online covering the health aspects of second-hand smoke and the legal aspects of taking or not taking action. Whatever happens, it’s hard to argue with Picaso’s assessment: “There’s going to be a cottage industry of second-hand-smoke preventers who seal things and have ways of cleaning up the smoke, like the lead paint people and the mold people – and attorneys who are going to specialize in it.”