Smoking Policies

New York City has passed regulations requiring all co-op and condo boards to pass a smoking policy, notify all residents of that policy, and post it in the building. This should motivate boards to begin thinking about what they and their residents want with respect to smoking and the quality of life in their buildings. Many boards have passed policies prohibiting smoking within apartments. Those are enforceable only through proprietary-lease amendments, and that requires a shareholder vote.

It is much easier to enforce your rules when they are solidified through proprietary-lease amendments. That’s not to say that you can’t do anything about smoking if it’s not in the proprietary-lease amendment. All proprietary leases prohibit shareholders from allowing odors to exit their apartments, both into common areas as well as into other apartments.

The best method for adding a smoking prohibition is to set up a system in which you inform your shareholders about the positives and the negatives of passing such a rule. Secondhand smoke is not only dangerous, but it also affects the quality of life. And smoke has a funny way of making its way throughout buildings – into common areas and other apartments. We have come across this issue in many buildings, and just recently we had a long and complex litigation over this issue – and the shareholder ended up getting evicted for smoking in his apartment.

However, it’s difficult to prove the source and the path of odors. If one or more residents complain about the odor of smoke, they not only have to prove that the individual in question is smoking in his apartment, but they also have to prove that it’s the same smoke that’s coming into other apartments. And that’s a difficult task.

In buildings where this is an issue, boards should think about amending their leases. That requires calling a special meeting of the shareholders and taking a vote. Most often this is achieved through the use of proxies. We found that it is relatively simple to pass because many smokers don’t smoke within their apartments. And this makes it simpler and less expensive for the board to address concerns, because any time you want to enforce one of your rules, you have to use your lawyers, or your managing agents, or other professionals. The simpler the case, the easier and less expensive.

If the board has amended its proprietary lease, all it has to prove is that the individual is smoking in the apartment in violation of that amendment. But you may have to hire special engineers or professionals who can trace the source of the smoke. And that can be expensive.

Some boards don’t realize the importance of paying attention to these types of complaints. As a co-op board, you are a landlord, and your shareholders are residents. As the landlord, you have an obligation to maintain the habitability of their units. If a shareholder can establish that the presence of the smoke has made it very difficult or impossible to live in the apartment, there is liability to the board and to the corporation.

So I urge all boards to pay attention to people when they’re lodging viable complaints, because these shareholders could take those complaints further. They could seek abatements of maintenance, and they could seek damages. There are lots of possibilities. So planning for that in advance is really the way to go.

Emanuela Lupu-Ferrante is a partner at Spolzino Smith Buss & Jacobs.