Gallet Dreyer & Berkey, LLP | The Problem of Second-Hand Smoke
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The Problem of Second-Hand Smoke

04/10/2010 | Spring 2010 Newsletter
Many of our cooperative and condominium clients have been burdened with the problem of second-hand smoke. When occupants smoke inside their own apartments, smoke sometimes migrates into neighboring apartments and public corridors. Most cooperative proprietary leases and condominium by-laws and house rules prohibit occupants from making odors that are offensive to their neighbors. However, boards are often loath to intervene in these private disputes. The failure to act can subject the cooperative and condominium boards to suits and damages for permitting a continuing nuisance. Offended owners have also successfully brought suits against smokers to abate the nuisance caused by second-hand smoke. The second-hand smoke problem is often correctible by sealing holes in walls, floors or ceilings, repairing defective ventilation systems and by using air purifiers that remove the offensive smoke particles from the air. If these remedies do not work, the board may consider the hot political problem of banning smoking in apartments.

Two cases illustrate the litigation hazards of board inaction. In Poyck v. Bryant, a case brought in the Civil Court of the City of New York in 2006, Mr. Poyck owned a condominium apartment and rented it to the Bryants for several years. New neighbors moved next door, who smoked constantly. The Bryants sealed their entry door, installed air filters, but could not stop the second-hand smoke from entering their apartment. The Bryants complained to the building superintendent and to the owner Mr. Poyck about the smoke seeping into their rented apartment and requested that they stop the ongoing health hazard. The owner took no action and the Bryants vacated, seeking a “healthier living environment.” The owner sued for several months unpaid rent. The court determined that the owner was obligated to take steps to stop the health hazard caused by the Bryant’s neighbors, and found that the warranty of habitability, which protects tenants against health hazards, applied to the second-hand smoke problem, even though the problem was caused by the neighbor who was not within the owner’s control.

In Ritter & Ritter, Inc. v. The Churchill Condominium Association, a 2008 California case involving a residential apartment building that was converted to a condominium, the builder did not properly fireproof the floor penetrations in the concrete slabs and smoke and odors from the apartment below passed into the Ritter’s apartment. The condominium board determined that the Ritters should have filled the holes in the concrete adjacent to their apartments and refused to perform the corrective work. In addition, the board fined the Ritters $200 per day for their failure to fill the holes. The holes could have been repaired for approximately $2700. The Ritters sued the board and each member of the board for nuisance, negligence, breach of fiduciary duty, breach of the condominium documents and other claims. The case went to trial and the jury rendered a verdict for the Ritters against the condominium (but dismissed claims against the individual members of the board). The Ritters recovered their economic losses of $4,620 and attorneys’ fees of $551,000.

The lesson learned from these cases is that inaction is not a proper response to complaints of second-hand smoke. Boards of cooperatives and condominiums should investigate the causes of the problems and require the apartment owners who smoke to remedy the problem which they are causing. If the problem arises due to common area defects, the board may be required to remedy the problem itself, or consider imposing a smoking ban throughout the building.