Are Smoking Bans As Inevitable As Death and Taxes?

A state Supreme Court judge ruled recently that a co-op shareholder who complained about second-hand smoke wafting into her apartment was entitled to $120,000 in back maintenance, plus interest and penalties. More than 60 percent of New York City voters would prefer to live in a smoke-free building, according to a survey commissioned by NYC Smoke-Free. And fewer than 14 percent of New Yorkers smoke, according to the city Health Department.

Even so, an Upper West Side co-op resident wonders in the Ask Real Estate column in the New York Times: “Is a rule that prevents smoking in your own home legal? Is it enforceable?”

Yes and yes, says attorney Robert Braverman, a partner in the firm Braverman Greenspun. To ban smoking inside apartments, he says, a co-op would probably have to amend the proprietary lease, a move which usually requires a two-thirds “super-majority” of shares in the corporation.

If a shareholder continues to smoke after a building-wide smoking ban is instituted, Braverman adds, the co-op board has the power to terminate the lease and begin eviction proceedings.

But will a smoking ban hurt the resale value of apartments?

Quite the opposite, in the opinion of Lisa Rose, an agent at Halstead Property, who says that some prospective buyers “get a teeny whiff of the smoke smell and they actually walk out.”