Regulation of Smoking in Cooperative and Condominium Apartments in New York

The regulation of smoking by cooperative and condominium owners in New York has become increasingly contentious in recent years. The New York Post recently reported that a condominium owner in New York could not be forbidden from smoking in his apartment. While this particular case was decided based upon the specific facts presented, smokers should not assume that buildings in New York will leave their behavior unregulated. As reported by the New York Times , it is becoming increasingly difficult for a smoker to locate an apartment that explicitly “welcomes” smokers.

Michael Bloomberg, the current Mayor of New York City, has proposed legislation that would require buildings to disclose their smoking policies to potential residents. The policy is meant to encourage people to match their lifestyle to the building in which they intend to live. While most people do not appreciate having their lifestyle policed by the government, people who feel strongly about either side of the issue may find it appealing to reside in a building suiting their lifestyle.

Some residents feel that if they own the apartment that they can smoke in their own home if they so desire. Smokers resent that their behavior is regulated in public and want at the very least to be able to smoke within the confines of their own cooperative or condominium apartment. Other residents, claiming to be disturbed by the smoke and fumes traveling through shared ductwork into their apartment, have demanded that their building enact regulations prohibiting smoking and enhancing their health concerns. In particular, smoky fumes travel readily through the ductwork of newly constructed buildings. In a communal living situation, cooperative and condominium boards are confronted with requests to enact building rules.

In the event that a building does not enact new rules, it will often look to existing governing documents and interpret same to manage a conflict. For instance, most proprietary leases and their associated house rules governing cooperatives in New York contain the following clauses “[t]he Lessee shall not permit unreasonable…odors to escape into the building” and “[n]o tenant shall …permit anything to be done …which will interfere with the rights, comfort or convenience of other tenants.” Armed with proprietary lease and house rules provisions such as these, a cooperative board can pursue a “defaulting” shareholder and threaten the termination of the proprietary lease if the shareholder continues to smoke in the building. Our readers should expect to see similar language in condominium governing documents. Disputes concerning these clauses are resolved by determining which apartment and unit owner is the source of the offending odor and whether the odor is unreasonable.

Should the cooperative or condominium’s governing documents fail to adequately address the building’s current position with respect to smoking regulations, the amendment of said documents should be considered. Our firm is available to interpret the requirements for amending governing documents, which need to be reviewed on a case by case basis. In many instances, a certain percentage of unit owners must vote at a meeting that is announced with adequate notice of the time and date as well as the written agenda for the meeting, which includes a draft of the proposed amendment. We will provide assistance to our clients as needed for the prosecution or the defense of enforcement procedures concerning alleged defaults in cooperative and condominium policies.