SMOKING-BAN VOTE, P.2

"I'm not sure, legally, if you can retroactively tell someone that they cannot smoke in their apartment," Saft says. "You can tell them that smoke can't leave their apartment, but — as much of an antismoking advocate as I am — if somebody already owns the shares and has a lease and is living in the apartment, I don't think you can take away their right to smoke if they're not affecting anybody else. [Even] if they amended their proprietary lease, there's a fair likelihood that it wouldn't survive a challenge [from the grandfathered people]. I don't know anything in the corporate documents that gives the board that kind of authority. They could bring an objectionable conduct action [to evict him], but the smoke would have to emanate out of the apartment."

Klein, the attorney who drafted the change, disagrees. "I'd be worried about [losing] a court challenge if we had simply done it by board resolution," he says. "But we did it all by the book. We got a super-majority of the shareholders to agree, and we amended the proprietary lease. Under the Business Judgment Rule, I believe the board acted within its rights, and I think the courts would concur."

Enloe, for her part, feels the board did what it had to do. "You need to do it thoughtfully, without rushing it. To be effective, you need to do it as a change to the proprietary lease. You need to let people air their views, both the pros and the cons. It's not something you can jam down people's throats because it touches everyone in a very visceral way, close to their homes, so they have very strong views about it. Nobody came to the [final] meeting unaware. Part of our thinking was you have people smoking, which is not a protected activity, and it is incumbent on you as a board — if you have people affected by that — to take care of the complaints. We felt we had a responsibility to do something about it."

From the January 2012 issue of Habitat magazine. For print-magazine articles back to 2002, join our Archive >>