Is it High Time for a Smoke-Free Building? Legalization of Marijuana May Prompt Landlords to Outlaw Smoking
Every New York resident knows that living in an apartment, whether a rental, cooperative, or condominium building, is often challenging, especially when your neighbors’ actions interfere with your life in unpleasant ways. Controlling the infiltration of odors, such as secondhand smoke, cooking, and pet odors are one of the most common quality of life issues faced by landlords and boards. This issue is likely to become even more challenging with the recent legalization of recreational marijuana for adults, as set forth in the Marijuana Regulation and Taxation Act (the “MRTA”), passed into law on March 31, 2021.
The New Law
Adults 21 and older can smoke or consume marijuana anywhere it is currently legal to use tobacco. Smoking is generally permitted on sidewalks in the city. Smoking cannabis, however, is not permitted in schools, workplaces, or inside a car. In New York City, it will be banned in parks, beaches, boardwalks, pedestrian plazas, and playgrounds, where tobacco smoking is banned. People will eventually be able to have cannabis delivered to their homes and cultivate up to six plants at home for personal use. Sales of recreational-use marijuana will not be legal until the state establishes regulations. The Office of Cannabis Management, created under the MRTA to oversee and regulate the recreational use of marijuana in New York State, may further limit or expand these and other restrictions.
What does this mean for residential buildings?
Odor Issues in Multiple Dwellings
The odor of marijuana is not new in most residential buildings, as medical use has been permitted for some time, and some residents simply smoked illegally. With legalization for all adults, both the use and the associated complaints may increase. As with cigarette, cigar, or pipe smoke, many residents not only object to the odor but also are concerned with the potential health effects of secondhand smoke, especially for those with respiratory problems or who have children at home. Odors can seep under doors and through ventilation ducts, electrical outlets, and light fixtures into neighboring units and common areas.
To curb the potential for increased odor complaints, landlords and boards should consider implementing a no-smoking policy or making theirs a smoke-free building.
Changing Building Policy
Landlords and boards may legally adopt policies to prevent smoking in common areas and individual units, just as they can prohibit other disruptive or dangerous behavior. A smoke-free policy refers to an explicit smoking restriction for cooperatives - both inside and outside of individual units (including balconies, decks, and patios) and all common areas. A clear no-smoking policy prohibits all forms of smoking (defined to mean anything that involves lighting or heating and inhaling the substance, which includes vaping and e-cigarettes).
Not only is such a policy likely to be attractive to New York tenants (as evidenced by recent surveys), but it may also reduce the landlord’s or board’s costs for maintenance and insurance by limiting the risk of fires and avoiding stains and odors.
Simply adding a house rule prohibiting smoking may not be a sufficient deterrent. The tenant or unit owner may prefer to pay a fine or administrative fee for the privilege of smoking. A court may not permit the eviction of a tenant for violation of a house rule. However, if the no-smoking rule is incorporated into the lease or other governing document, such as by amending the proprietary lease in a cooperative or the by-laws in a condominium, courts are more likely to enforce the prohibition, and allow the landlord or condominium board to terminate the tenancy and evict a tenant who violates the lease by smoking or to obtain an injunction to stop a unit owner from smoking in a condominium.
Landlords and boards are reminded that even if they implement a no-smoking policy, persons with disabilities may be entitled to a reasonable accommodation to permit them to smoke in the building. Both the FHA and the New York Human Rights Law require that landlords make “reasonable accommodations in rules, policies, practices, or services…when such may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.”
Residents, especially those in federally funded or governed buildings, are cautioned that, despite the MRTA, using and possessing marijuana for any purpose (including medical reasons) is still illegal under federal law. Using it anywhere, even in the privacy of your apartment, exposes you to the possibility (even if remote) of being charged with a federal crime.
Surveys indicate that the demand for smoke-free housing among New Yorkers is increasing. That demand may grow with the passage of the MRTA. Now is the time to revisit your building’s policy and determine if a smoke-free building is appropriate for your community.
Please do not hesitate to contact us if you have any questions regarding creating and implementing a no-smoking policy, or if you would like our opinion concerning the contents of your governing documents.