Smokers Have Two Options: Butt Out or Move Out

Back when smoking bans were regarded as radical, many co-op boards passed them with grandfather clauses. This meant new buyers were forbidden from smoking, but longtime shareholders were allowed to continue smoking inside their apartments. The idea was that, over time, the building would become smoke-free without undue hardship for residents who smoked. 

Today, with anti-smoking forces on the march, boards have become much more aggressive about banning smoking immediately inside all apartments. Such is the case in a Manhattan co-op, where smoking anywhere on the property will be illegal beginning in January. A 76-year-old smoker who has lived in the building for 20 years wonders if he has any right to challenge the impending ban on smoking.

When you buy in a co-op, says the Ask Real Estate column in the New York Times, you do so with the understanding that if the co-op board enacts a new policy, you will follow it, even if you don’t agree with it. 

Buildings usually change smoking rules by amending the proprietary lease, a process that requires the support of a super-majority of all shareholders, usually two-thirds or three-quarters, depending on the co-op’s rules. “Most buildings that have gone smoke-free have done so because of a strong groundswell from their apartment owners wanting it,” says attorney Aaron Shmulewitz, a partner at Belkin Burden Wenig & Goldman. 

With a large majority voting for the measure, the board will presumably be under pressure to enforce it. Assuming the rule was properly enacted, shareholders do not have many options other than to comply. But since it singles out certain shareholders, isn’t a smoking ban discriminatory? 

“Since smokers are not a legally recognized protected class, smoking bans are not discriminatory and should be enforceable,” says attorney Dennis Greenstein, a partner at Seyfarth Shaw. 

And all co-op and condo boards need to remember that even if they don’t want to impose a smoking ban, a new law requires them to adopt a written smoking policy, distribute it to all shareholders or unit-owners, and display it in the building. Local Law 147 was enacted not to discourage smoking but to help prospective buyers make an informed decision if a building’s policy is one they can live with.