Smoke Gets in Your Eyes

Once upon a time, smoking was popular in song (the romantic “Smoke Gets in Your Eyes”) and film (remember suave Paul Henreid simultaneously lighting two cigarettes for him and his lady love in Now, Voyager?), and everyone who was anyone seemed to smoke. But now, while smoke does get in your eyes, it also gets into your clothing, your apartment, and your lungs while the well-publicized dangers of second-hand smoke have led to smokers being something less than figures of romance. And in some co-ops, fears of health problems and potential lawsuits have caused many to impose bans on would-be buyers who have the nicotine habit.

Whether or not boards want smokers in their buildings, or have the power to decide on this issue is, according to Aaron Shmulewitz, a partner at Belkin, Burden, Wenig & Goldman, going to be the next hot issue confronting boards. How difficult is it to implement the bans? Should you do it at your property? And what are the short- and long-term consequences for resales at your building and the overall quality of life?

Smoke and Mirrors

For Deborah Constantine, president of a co-op in the Clinton neighborhood of Manhattan, there was never any doubt that smoking caused major problems for the whole building: “When there was a smoker in the building, the entire floor was breathing in the smoke.”

The five-story walk-up at 431 West 54th Street is a 20-unit co-op that was originally largely occupied by people from the nearby theatre world. Constantine, a lighting designer, shares her exquisite, handkerchief-sized apartment with a demanding white cat. For some time now, her board has actively discouraged smokers from buying or renting in the building and this has now become a de facto smoke-less environment without seeking a vote from shareholders to amend the proprietary lease.

“For health reasons, we decided to keep the building as smoke-free as possible,” she says. “It was the board that decided that but when we had our annual meeting and talked about it, everybody was in favor of it, so it wasn’t an issue at all.” The long narrow corridors on each floor act like funnels for the fumes and the whole building, as described by Constantine, “is porous. Cooking odors are another thing we get, but we’re all willing to deal with that.”

Constantine’s building makes the process look easy. It isn’t always. The initial attempt was made in 2002 by 180 West End Avenue, part of the Lincoln Towers complex. Under the guidance of attorney Stuart Saft, currently a partner at Dewey LeBoeuf, the board attempted to institute a partial prohibition against smoking. The attorney felt that it would be impossible to prohibit smoking entirely in one move, since such an outright ban could result in lawsuits from aggrieved residents who smoked. Instead, he came up with an approach that would only affect new owners. They would, in their closing documents, agree not to permit smoking in their units.

Although shareholder protests and excessive negative publicity from the media caused the board to back away from the plan, its limited approach – reaching for the goal of a smoke-free building but grandfathering in existing smokers – became a blueprint for future smoking bans.

That’s the route Sonja Cooper took. “Even though one would like to live in a smoke-free building, I think that [a total ban] creates revolution and this is an ‘evolutionary’ way of doing it,” says Cooper, president at the 181-unit co-op managed by Maxwell Kates at 244 Madison Avenue. It has a new buyer prohibition in place. Cooper is a trial lawyer, and that may account partly for her concern that the board needed to take some action about smoking.

Her concerns initially earned skepticism. “When I first mentioned it to the board in 2005, there wasn’t much interest in taking this on,” she recalls. It took a number of meetings with the clincher being Cooper’s warning that the courts could hold co-ops liable for injuries related to secondhand smoke. (She also says that health issues were important. “We have a lot of young children here.”) By the end of 2006, the board, headed by the president, Richard Shevlin, had adopted a policy to restrict subletting to non-smokers, and during the first quarter of 2007 broaden this restriction to new buyers. Since admission policies are the purview of the board, shareholder approval was not needed.

“When we interview prospective purchasers, we question them about whether or not they would permit smoking by their guests,” observes Cooper. “We don’t say you cannot permit a guest to smoke although we indicate our disfavor. But we tell them there can be no fumes emanating from the apartment into anyone else’s apartment or into the hallway. That would be a violation of our house rules and proprietary lease.”

Cooper acknowledges that, while the application package states the co-op is a “no-smoking building,” current smokers in the building are grandfathered in. Nevertheless, any grandfathered smoker creating problems for other apartments is asked to undertake any required remedial work. Notes Cooper: “In one case, the shareholder was required to provide appropriate ventilation.”

Another property, a 118-unit condominium at 411 East 53rd Street in Manhattan, has wrestled with the issue of cooking and smoking odors in the hallways of the 40-year-old building. The current board members have ambitious plans to ultimately make the condo completely smoke-free. But they, too, are planning to move gradually to that end.

One of the property’s attorneys, Richard Resnik, a partner at Seyfarth Shaw, doesn’t believe that the existing rule prohibiting odors and noise is adequate to cover smoking. “I’m not sure that in court you would be able to prove, satisfactorily that a smoking odor going into your next-door neighbor’s apartment is sufficient to throw somebody out,” he notes.

“But we’re concerned as much about potential health hazards and the liability of the board to a person for health injuries. Information is out in the public domain from the surgeon general’s report that constantly being bombarded with secondhand smoke may very well have a serious health impact. And we have to balance your right to live in your unit with our fiduciary obligations as managers of this condo to protect the health and safety of other people.”

After discussions last year about how far they could go, “We simply imposed a new house rule that requires renters, on an ‘on-going forward’ basis, to sign a rider to their lease in which the subtenant agrees not to smoke or allow any occupants to smoke.”

Marilyn Appleberg, a real estate agent with Wohlfarth & Associates, is also board president of her 28-unit co-op at 111 West 10th Street, which is managed by John J. Grogan & Associates and consists of six former townhouses built in the 1850s. Appleberg supported the board’s decision to move towards becoming a non-smoking building. Under the new policy, anybody who buys in to the co-op signs a no-smoking affidavit drafted by the co-op’s attorney, Arthur I. Weinstein.

“The co-op has a legal right to reject a prospective purchaser if that person is a smoker on a number of different theories, not the least of which is that we are making a reasonable accommodation for those of our shareholders who are allergic to cigarette smoke.” He points out that smokers are not a protected class under any human rights laws.

The board didn’t attempt to make the building completely smoke-free in one swoop because there were smokers already in residence. Observes Appleberg: “They’re grandfathered. I’m not going to tilt at windmills. The fact is, as things have turned over and people sign this, it’s going to become the majority.”

Jeff Reich, a partner at Wolf Haldenstein Adler Freeman & Herz, cautions that a policy targeting purchasers can be derailed if the incoming shareholder is not completely honest with the board. One way to surmount that is to create an amendment to the proprietary lease. “I have a building that will be asking their shareholders to approve an amendment that says that any material misrepresentation in the purchase application will be deemed a default under the terms of the lease. So if someone said they were not a smoker and they lied, you would have the right to terminate the lease.”

The Benefits

Since the 2006 court decision that failing to deal with secondhand smoke could invoke the warranty of habitability, boards throughout the city, according to many attorneys, have considered whether they need to take some kind of action. Eric Goidel, partner at Borah Goldstein, reports that most of his buildings have decided against it. The thinking is: “If they ban smoking prospectively they’re going to lose a world of potential buyers that most unit-owners and shareholders don’t appear to be willing to lose for the health benefit of everybody in the building. They’ve determined that economics outweighs the health benefits and they’ll deal with problems on a case by case basis as they arise.”

Contrary to such worries, many say the opposite has occurred. Barbara Goodman, a broker with Corcoran, who recently had a sale in Sonja Cooper’s building, says she had absolutely no problem selling the apartment. “As a matter of fact, the people that came, once I told them, they said: ‘Oh, good.’ ”

Donald Kemper, a vice president at Prudential Douglas Elliman, has handled sales and rentals in the building for the last few years and says that he has had nothing but positive reactions from his clients. “People typically respond: ‘I’d love to be part of a community like that.’ And with the majority of the population being non-smokers, I guess it does translate into being a positive.”

For boards that want to explore their options, a useful source of information and advice is the New York City Coalition for a Smoke-Free City. Notes director Joanne Koldare: “Secondhand smoke is more than a nuisance; at this point, we know that there is no risk-free exposure.” Koldare cites the 2006 U.S. Surgeon General’s report, which put all on notice that they can no longer be sanguine about smoke.

For one week in July, Koldare ran a TV ad about smoke-free housing and apartments. The interest was overwhelming. Before the spot ran, hits on the coalition’s website were running at about 500 a day. By the end of that week, it was getting 11,000 hits a day.

She also got phone calls. Koldare was surprised that, in addition to the expected ones from tenants, a number of landlords and apartment-owners were calling for help to create smoke-free buildings. She was, however, dismayed by the attitude of co-op boards. “They’re actually as timid as if they weren’t in a seat of power; they feel uncomfortable that this might have some contentiousness,” she says. “One shareholder called about a problem she was having with smoke coming into her apartment, and I said, ‘Why don’t you take it to the board?’ And she said, “I’m on the board.’ ”