Co-ops Face Challenges in Resolving Disputes over Smoking and Odors

TAKING IT PERSONALLY  At co-ops that allow smoking inside apartments, disputes between neighbors about smoke and odors are one of the most challenging issues for boards, because they can escalate and get very confrontational, very fast. Often the smoker thinks, “I have the right to smoke in my apartment, stop bothering me.” The neighbor who is complaining thinks, “I have the right to enjoy my apartment free of odors and secondhand smoke.” Those two worlds collide, and boards sometimes struggle to find a perfect solution.

The most common situation I see involves older people who have been smoking cigarettes or pipes and have been in their apartment forever with no problem. Then someone new moves in next door who happens to be more sensitive than the previous residents and complains to the board. You don’t necessarily have a duty to take action to solve the dispute, but you do have a duty to investigate and determine whether the complaint is legitimate. The right way is to take a laddered approach. The first rung is asking the aggrieved party to notify the building staff when this problem is happening so they can come to your apartment and then try to determine where the smoke is coming from.

FINDING A SOLUTION  If there is indeed a problem, the next step is to have a talk with the smoker and inform them that a neighbor is complaining about smoke and odors emanating from their apartment. Then ask the following questions: Are you smoking here? Are you smoking in a certain section of the apartment? Can you get an air filter or door draft stopper? Can you smoke near a window or go outside? In older buildings, wall cracks or ineffective vents can allow smoke to escape. Corrective actions, like filling in the cracks and changing vents, is typically the shareholders’ responsibility. But building staff can help out doing things like sealing cracks. It’s a practical, proactive approach to solve the problem before serving a formal notice to cure and, in the worst case, bringing an action against the smoker for violating the proprietary case.

LEGAL STANDING  The legal liability for boards only comes into play if a complainant takes you to court, typically for violating warranty of habitability. If your board hasn’t done anything it’s more likely to receive an adverse decision. As long as you can show that you’ve taken action when someone complains, you’re pretty safe. So you must try to figure out a practical solution for both sides as early as possible, before everyone hardens their positions and just retreats to their corners. Don’t ignore; investigate. And if you determine there isn’t a problem, send the complainant a response letter saying, "We looked into this and don't believe there's a violation of the rules. We now consider the matter closed.”