How to Prohibit Smoking - Law Office of Robert L. Gordon

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Robert L. Gordon, Principal, Law Office of Robert L. Gordon. Can a board prohibit smoking in a cooperative or condominium?

BACKSTORY Recently, one of my cooperatives considered whether to ban smoking or combustion of any and all tobacco products, including but not limited to the common areas, sidewalks adjacent to the cooperative premises, basement, garage or other parking areas, indoor and outdoor sitting areas, and the cooperative units themselves.

Although my review of mixed case law on this issue provided little guidance to advise the client of what the clear legal path should be, the existing framework of the cooperative’s documents did set the stage for what was necessary. Several shareholders were arguing that their medical conditions were exacerbated by the secondhand smoke wafting into their apartments and that the cooperative was failing to enforce its obligations to maintain habitable living quarters.

Additionally, the existing language of the cooperative’s house rules already prohibited noxious odors and excessive disturbances to other residents in the building. In light of the cooperative’s existing documentation and the board’s desire to provide the best possible living environment for the shareholders, action was needed. After several meetings were held to consider the issues, the board voted to ban smoking to avoid liability, prevent damage to the cooperative, and enhance the equity of the shares by becoming a smoke-free building.

I drafted a letter for distribution to the building residents explaining the board’s reasons for banning smoking and that the house rules would be amended to prohibit smoking or combustion of any and all tobacco products in their building. By amending the cooperative’s house rules and not the proprietary lease, this meant that a board vote would be sufficient to make this change instead of a super-majority vote of the shareholders to amend the property lease.

Ultimately, the board amended its house rules to prohibit the smoking of tobacco products throughout the building premises. This meant that smoking is no longer allowed anywhere in the apartments or the public areas. The board of directors was compelled to prohibit smoking based upon the following concerns:

• Health and quality-of-life complaints voiced by the building residents regarding secondhand smoke. Tobacco smoke was permeating many nonsmokers’ units and the common areas of the building, thereby creating breathing-related medical disorders and potential liability for the cooperative.

• Damage to the common areas of the building caused by discoloration from smoke, as well as unpleasant odors that detracted from the building’s appearance. The board of directors also received complaints from the building residents regarding lost sales because of the discoloration and odors in the common areas.

• Evidence of the harmful health effects of secondhand smoke and the developing trend of cooperatives and condominiums prohibiting smoking to protect the health, welfare, and safety of building occupants, reduce exposure to lawsuits, and prevent the decrease in equity because of lost sales and a less attractive building.

This decision was made even though there were several smokers who were adversely affected by the board’s determination. However, the overwhelming majority of the building’s residents appreciated the new house rule, and compliance with it has been very high.

COMMENT The lesson learned from this is that even though there may not be clear case law concerning the legal obligations for a cooperative or condominium regarding permitting or prohibiting smoking, there may well be language in the operative documents (proprietary lease, house rules, or bylaws) that mandate some action to ensure compliance with the board’s obligation to provide a healthy environment and maximize the unit’s equity value.

Additionally, advance coordination between the attorney and the board resulted in a careful presentation of the rationale to ban smoking to the shareholders so that the board’s intent and the underlying reasons to ban smoking were clearly communicated.

From the Desk of RLG:

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The Verdict,

even though Paul Newman’s character decides to reject an initial settlement offer without consulting his client.

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