Secondhand Smoke Is Now a First-Class Headache

A Manhattan co-op that allowed secondhand smoke to waft into shareholder Susan Reinhard’s apartment recently took a big hit: the State Supreme Court ordered the co-op to refund all of Reinhard’s maintenance since 2007, which came to about $120,000, plus interest and legal fees.

This is the second decision in the case. In the first, which we’ll call Reinhard I, the court noted in 2011 that the board had failed to do anything to remedy the secondhand smoke situation, which is why the judge was angry in Reinhard II. In any event, until Reinhard II is appealed and reversed, the law in Manhattan and the Bronx is that co-op boards and rental landlords have to make non-smokers’ apartments smoke-free. The rule could eventually be extended to condominiums.

However, the decision does not indicate how the board or management can accomplish such a herculean task. Completely preventing smoke from entering other apartments or the hallways is nearly impossible, so boards need to follow certain steps to avoid a nightmare scenario in which co-ops are forced to refund maintenance to their shareholders.

I’m not an engineer, but I doubt that any existing building, either pre-war or post-war, can be made smoke-free. And with the existence of central HVAC systems, I doubt that a building can be constructed that prevents secondhand smoke from traveling between apartments. So the only solution would be to place the burden of enforcement on the residents of a building.

Therefore, my solution is for every co-op board to enact a resolution stating that “a resident permitting cigarette, cigar, pipe, or marijuana smoke to leave the resident’s apartment and enter a common hallway or another apartment is objectionable conduct and the board will seek to terminate the proprietary lease of any shareholder permitting such smoke to leave their apartment.”

Although the Reinhard II decision does not apply to condominiums, I can see a judge applying the same theory to them. So my suggestion is that condo boards enact resolutions that provide that “a resident permitting cigarette, cigar, pipe or marijuana smoke to leave a unit and enter a common element or another unit is a nuisance and the board will seek a court order, at the smoker’s expense, to enjoin the unit-owner from permitting such smoke from leaving their unit.”

There are, of course, other steps that can be taken, short of making the building smoke-free. One is for co-op boards to pass a resolution stating that they will not approve a purchase application unless the purchaser agrees that no one will smoke in the apartment. Another is for the board of either a co-op or condo to enact a house rule stating that “in the event that secondhand smoke emanates from one apartment to another apartment or common hallway, the owner of the apartment that is the source of the secondhand smoke will be liable for remediation costs to seal both apartments, as well the professional fees to cover the costs incurred to seal both apartments.”

(Stuart Saft is a partner in the law firm of Holland & Knight.)