By Craig Karmin
The Wall Street Journal, March 16, 2011
New York has been taking an increasingly tough stance toward smoking, but virtually all residential buildings have drawn the line at telling people they can’t smoke in their own apartments.
That may be changing. At least half a dozen Manhattan co-ops are expected to ask shareholders during annual meetings this spring to vote on an all-out smoking ban that would prohibit residents from lighting up in their own homes, real estate attorneys say.
New York has been taking an increasingly tough stance toward smoking, but virtually all residential buildings have drawn the line at telling people they can’t smoke in their own apartments.
That may be changing. At least half a dozen Manhattan co-ops are expected to ask shareholders during annual meetings this spring to vote on an all-out smoking ban that would prohibit residents from lighting up in their own homes, real estate attorneys say.
Some boards, like Mr. Michaelson’s, are putting it to a vote again after a previous effort to ban all smoking failed. Others, like shareholders at a Sutton Place co-op, are considering a vote for the first time.
The issue can pit neighbors against each other, and not always along the lines of their taste for nicotine.
Younger residents who grew up in smoke-free public environments tend to be more anti-smoking than older residents. Condo buyers who bought as an investment often oppose a ban, reluctant to limit their pool of renters and fearful they could get stuck with fines if their tenants get caught puffing.
“It’s the one topic, aside from bedbugs, that all co-op boards are talking about,” says Aaron Shmulewitz, a Manhattan real-estate attorney.
The city’s health department says only about 16% of New Yorkers characterize themselves as smokers.
But there are still plenty of reasons why these bans might be tough to enact.
Most co-ops require at least two-thirds of all shares to vote in favor of a ban for it to pass, while condos may require three-quarters of all unit owners to approve a ban.
Some people think that enforcing an apartment ban would be difficult, while other homeowners are concerned that a smoking ban might reduce the property’s value, says Jeff Reich, a real-estate attorney.
Many smokers–and some non-smokers–worry that it would go too far in infringing on privacy rights. “They feel that banning smoking from their homes impedes on their freedom,” says Mr. Michaelson, the condo president.
A co-op at 200 E. 74th St. voted down a full smoking ban a couple of years ago, despite what one lawyer said was strong antismoker sentiment among many residents. Representatives of the building couldn’t be reached for comment.
Some recent court decisions are helping to fuel the drive to ban smoking in apartment buildings.
In 2006, a civil court judge in Manhattan ruled that second-hand smoke could be a breach of “warranty of habitability” under state law. That led some attorneys to suggest that shareholders might be excused from paying maintenance fees if second-hand smoke permeates their apartment and they could sue their co-op for damages.
A couple who live at 200 Chambers St. are suing a neighbor for up to $25,000, plus fees and damages, saying their neighbor’s smoke enters their apartment. Christian and Britt Ewen allege that the smoke caused health problems for them and their 3-year-old daughter, according to the complaint.
Ms. Ewen says they have to open the windows to dilute the smoke, which was a problem in the winter.
“We had to decide between getting sick from the cold or from the cigarette smoke,” Ms. Ewen says.
A civil court denied the neighbor’s motion to dismiss the case. He is appealing that decision.
Steven Sladkus was an attorney for the co-op board at Lincoln Towers in 2002 when the board voted to ban smoking in all units. The board quickly rescinded that ban after its insurance company balked at paying defense costs if the board was sued over the action, Mr. Sladkus says.
Some developers, meanwhile, have already instituted partial bans. Related Cos. owns two downtown and one Upper West Side residential rental properties where existing tenants can smoke in their apartments but new tenants cannot.
“We expect those buildings will be at least 97% smoke-free within three years,” says Jeff Brodsky, president of Related Management. “And we could add new buildings that will be entirely smoke-free.”
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