NYC Cooperatives and Condominiums Must Adopt Smoking Policies
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NYC Cooperatives and Condominiums Must Adopt Smoking Policies

4/4/2018 | By: David L. Berkey, Esq. and Marc J. Luxemburg, Esq. | GDB 2018 Spring Newsletter
New York City recently enacted a new local law that requires all owners of Class A multiple dwellings, which includes most cooperatives and condominiums, to adopt and distribute to shareholders, tenants and unit owners a smoking policy prior to August 28, 2018.

The New Smoking Law

The new law, Local Law 147, does not state what the smoking policy should be – i.e., it does not require a total smoking ban.  But smoking is already prohibited by local law in enclosed areas in public places, which includes common areas of apartment buildings, elevators, and areas where a child care or health care facility is located, as well as in certain outdoor areas such as playgrounds and pedestrian plazas. Some cooperatives and condominiums have adopted complete smoking bans and New York City offers a guide for smoke-free living entitled “Making Your Building Smoke-Free: A Guide for Landlords and Managing Agents.” 

Recommendation for Boards

We recommend that, if Boards do not already have a written smoking policy, they should develop one now, so they can meet the August deadline to adopt and distribute or post their policy.
  • The law requires the smoking policy to address all indoor locations, including all common areas and dwelling units, and all outdoor areas, including common areas and terraces, balconies and patios connected to dwelling units.
  • The Board of a cooperative must incorporate the smoking policy into the proprietary lease or house rules.
  • The Board of a condominium must incorporate the policy into the condominium by-laws or rules and regulations.
Although virtually all proprietary leases, condominium by-laws or rules already generally prohibit unreasonable odors, these general provisions are not specific enough to comply with the new Local Law requirements.
Boards should adopt a comprehensive policy, addressing each of the areas specified in the Local Law and stating where one can smoke and where one cannot.
Since the policy must be incorporated into existing rules, the rules need to be revised to incorporate the new smoking policy. It is not enough to pass a policy and leave the rules as they now exist.
Boards must annually provide a copy of the smoking policy to all tenants, subtenants and owners, or post the policy in a prominent location. Boards must also advise tenants, subtenants, and owners of any material change in the policy.  Presumably, this can be accomplished by including the policy in the same mailing with the annual window guard notice.
Boards must incorporate the policy into any agreement to rent or lease an apartment.  For cooperatives, the policy must be added to the proprietary lease or to the house rules.
Cooperative shareholders and condominium unit owners who sell or lease their apartments must incorporate the policy into any lease, sublease or contract of sale of the apartment.  We recommend that the application packages for subleases, leases and sales be amended to incorporate this requirement.
The law provides that the new smoking policy shall not be binding on an existing rent-stabilized or rent-controlled tenant; or on other tenants during the term of the lease in effect at the time of the adoption of the policy, unless otherwise provided in their lease.  By definition, this applies to proprietary leases and, if read literally, it could mean that the new smoking policy could not be applied to any existing tenant-shareholder.  However, the power to change the house rules should be interpreted to mean that the proprietary lease provides otherwise, and the new smoking policy should be binding on all tenant-shareholders.

Failure To Comply Is Costly

Failing to comply with the new law can be costly.  The law provides for civil penalties up to $2,000 for multiple violations of the smoking policy law.
The bottom line is that cooperatives and condominiums should act now to adopt a comprehensive written smoking policy, amend their existing rules to conform to the new policy and distribute or post the policy by the August 28, 2018 deadline.