Coop and Condo Boards Shouldn’t Ignore Smoke Complaints
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Coop and Condo Boards: Do Not Ignore Second-Hand Smoke Complaints

6/27/2016 | By: Peter R. Massa, Esq. | Summer 2016 Newsletter

Cooperative and Condominium board members frequently receive complaints about smoke traveling from one apartment to another. Many residents now wish to live in smoke-free buildings and worry about the effects that second-hand smoke will have on themselves and their families.

Board members can be stuck in the middle between residents who believe they have the right to do what they want to do (i.e. smoke) in their own apartments and other residents who believe they should have the right to live without second-hand smoke.

The courts are now weighing in. Recently, a New York State Supreme Court judge in Manhattan held that a resident who had smoke entering her unit since 2007 was entitled to a maintenance abatement of over $120,000. This case should be a wake-up call to all cooperative and condominium boards and managing agents that smoking complaints cannot be ignored.

We have frequently been asked by our cooperative and condominium clients what they can or should do about smoking. When a resident complains to a board or managing agent about smoke, often there are no easy answers. Before reaching another apartment, smoke may travel through vents, floors, ceilings, and even outside of the building. We recommend that the board hire an industrial hygienist to determine where the smoke is traveling through to get to the affected unit and propose remediation solutions for the problem. The board should attempt to work with unit owners to implement any proposed solutions and begin the legal process if the offending resident does not cooperate and the problem persists. Most buildings have house rules that state that odors may not emanate from one unit into another unit, and many proprietary leases and by-laws contain similar language.

Many boards are also contemplating making their buildings smoke free. While we believe boards generally have the right to prohibit smoking by instituting a House Rule, most boards initially start with a survey of shareholders/unit owners to determine if there is sufficient support in the building for such a ban. Many boards also propose amendments to the proprietary lease or by-laws to enact a smoking ban so that if the ban is later challenged, the board’s position is stronger since the ban has been approved by the shareholders/unit owners.

Therefore, based on where the case law is heading, boards that ignore and do not act on smoking complaints do so at their own peril.