Smoking Statements

Attention, co-op and condo boards and their management companies. There’s a new law in town – Local Law 147 – that requires all residential buildings to create a written policy stating where smoking is permitted or prohibited, including common outdoor areas such as courtyards, rooftops, balconies, and patios.

The legislation also mandates that the policy be provided to all co-op shareholders and condo unit-owners and be publicly displayed in the building no later than August 2018.The regulation does not prohibit smoking within apartments, nor does it require that any specific bans be included in a building’s policy. Rather, it’s a disclosure statute, enacted so that prospective purchasers can make an informed decision as to whether a building’s policy is one they can live with.

“Smoking and the risks of being exposed to secondhand smoke is an issue more people, especially families, care about,” says attorney Eva Talel, a partner at Stroock & Stroock & Lavan. “It is fair to ask boards to adopt a policy and make it clear to prospective buyers, since one building may have a more expansive policy while another is more exclusive. Yes, people could learn the same thing by asking a managing agent, but with this law, it’s not dependent on whether someone asks the right question or what someone’s response may be. It avoids confusion.”

Still, the statute is taking heat from critics who say it is addressing a problem that doesn’t really exist. “It’s couched as a disclosure matter and as a consumer protection law, but I think it’s a little too intrusive,” says Ben Kirschenbaum, vice president and general counsel at FirstService Residential, a management company. Given that the existing law, 2002’s Smoke-Free Air Act, already bans smoking in lobbies, stairwells, hallways, elevators, and other common areas in buildings with 10 or more units, just how meaningful is the new regulation?

“Reaching a consensus and adopting a policy in accordance with current law won’t be hard for most buildings, but you have to ask what the true value is versus the administrative costs,” says Kirschenbaum. “It creates a new set of burdens for boards and managers.”

Smoker Screening

The checklist for complying with the law is pretty straightforward. Over the next few months, boards should deliberate and consult shareholders, unit-owners, and their attorneys so that they will have a policy in place, distributed, and on display by mid-August at the latest. The second step is advising shareholders and owners to include the smoking policy in any lease, sublease, or apartment purchase contract which they enter into. In addition, the bylaws and house rules should be amended to incorporate the policy.

“To be on the safe side, we will defer drafting the actual language to each building’s counsel,” says Dennis DePaola, executive vice president at Orsid Realty. “The wording of both the contracts and amendments to the house rules has to be carefully done in light of all the governing documents, as well as New York City and State law.”

For his part, Kirschenbaum is putting together some guidelines to help boards comply with the law after a smoking policy is adopted. “It will make clear that boards have to put it in application packages so that each time someone wants to rent or sell, the policy is communicated from the directors to the owners to the potential tenants or buyers,” he says. “We’ll also keep reminding boards every year of what their obligations are.” As DePaola sees it, the new law comes with a valuable perk. It provides an opportunity for boards to enforce existing rules more effectively, prohibiting people from allowing secondhand smoke to emanate from their units through floors, ceilings, and doors. “It’s a common problem, but attacking it is very tough for boards and managers,” he says. “First, it’s often hard to find the source of the smoke, and even if you do, it isn’t easy to put a stop to it. We have a few tricks – caulking up outlets, weather-stripping doors, and making sure the ventilation is working properly – but you can’t really eliminate the problem if the smoker doesn’t cooperate. In that case, the only other recourse is suing them for eviction.”

A smart move, DePaola suggests, is for boards to establish penalties and build them into the amended house rules and proprietary lease. “That way, if someone is causing problems, we’ll have an enforcement mechanism in place,” he says. “If we do have to send a legal letter or sue, it wouldn’t be for eviction, but to abate the nuisance.”

Directors can take other proactive measures as well. “They could consider adding to the package that has to be submitted to them by prospective buyers or occupants an inquiry as to whether they are smokers,” says Talel, the attorney. “That’s not legally objectionable, and screening people in advance is another way buildings can contain the level of secondhand smoke.”

A Boon for Bans?

The big question is whether the new rules will encourage co-ops and condos to impose building-wide bans that prohibit smoking within individual apartments and in private outdoor spaces. “You can see what direction the city is going in,” says Talel. “There’s a real concern about health hazards.”

Andrew Lazarus, senior vice president at Tudor Realty, agrees that the statute may well push boards in that direction. “Keeping up with new regulations and incorporating them into formal documents is business as usual for boards and managers,” Lazarus says, “but where this law differs is that it will very likely lead to a larger, ongoing discussion about buildings going smoke-free.”

It’s already a hot-button issue, and one that seems to be gathering steam. “I’ve noticed a real change of attitude at annual meetings,” Lazarus says. “Compared to years past, shareholders are much more willing to talk about the issue, ask about what other buildings are doing, and hear both sides of the argument. And boards have already been actively exploring different policies and soliciting views by surveying shareholders and unit-owners.” With the new law, he adds, “there will definitely be an extension of that conversation.”