Momentum Gathers for Smoking Bans. Two Attorneys Tell How to Implement.

By Stephen Marcus and V. Douglas Errico
Habitat Magazine, April 13, 2012


In a major policy move, the Real Estate Board of New York (REBNY) yesterday proposed guidelines for implementing no-smoking policies for inside co-op and condo apartments, and not just in common areas as city law already specifies. As well, a draft proposal for legislation mandating this very thing was recently submitted to the New York City Council.

Here, two nationally recognized condominium-law attorneys survey the fast-changing landscape regarding anti-smoking rules — with a practical guide on how co-op boards and condo associations can fairly and effectively implement bans.

April 13, 2012 — The battle between smokers and non-smokers may be reaching a tipping point in co-ops and condos. Boards are introducing proprietary lease or bylaw amendments prohibiting smoking completely — in individual units as well as in common areas. And those proposals are attracting considerably more support and considerably less opposition than they have in the past.

This is largely a reflection of changing attitudes toward smoking. Only 20 percent of the population nationally define themselves as smokers, and growing numbers of non-smokers are concerned about the health hazards of exposure to secondhand smoke. A 2006 Surgeon’s General report concluded that “there is no risk-free level of exposure to second-hand smoke,” and that message appears to have taken hold.

Condominium owners and co-op shareholders who a few years ago would have defended the right of their neighbors to smoke, even if they themselves did not, are now more inclined to support non-smoking neighbors concerned about the smoke that is seeping into their units.

We regularly field calls from boards that have adopted smoking bans or are looking for advice on that process. Some advertise their smoke-free status on their websites, suggesting that they view their smoking ban not as the sales impediment that many co-op shareholders and condominium unit-owners have traditionally feared, but as a marketing advantage.

Some co-op and condo boards remain concerned that a smoking ban will reduce the pool of prospective apartment buyers, but Chris Banthin – an attorney working with the Public Health Advocacy Institute at Northeastern University School of Law to develop free-market strategies to reduce smoking and exposure to secondhand smoke – points out that with non-smokers now significantly outnumbering smokers, smoking restrictions are likely to attract more buyers than they repel.

Projecting current trends, he suggests the non-smoker to smoker ratio will become even more lopsided, smoking bans will be more widespread, and with fewer options available to them, smokers will concentrate in the remaining buildings that allow smoking. So co-ops and condos that choose not to adopt smoking bans will be choosing, in effect, to become smokers’ buildings in the future, Banthin contends.

Condominium owners who are willing to tolerate a few smoking neighbors today may feel differently if they find themselves a few years from now in a small minority, vastly outnumbered by residents who smoke. And as the ranks of smokers continue to decline, the pool of potential buyers and tenants interested in smokers’ buildings will shrink as well, giving communities another strong economic argument for going smoke-free.

Going Beyond “Nuisance”

It is possible to prohibit smoking by claiming it to be a “nuisance,” in violation of the proprietary lease or other governing documents. But this is not an approach we recommend, for several reasons. First, while the board’s authority to regulate activities in common areas is clear, its authority to restrict activities in individual units is both less clear and more restricted.

Second is the difficulty of defining precisely what a nuisance is. Think of noise as an example. Some people are more sensitive to noise or less tolerant of it than others. The same is true of smoke. Some people are more concerned about second-hand smoke than others. Some find even a trace of smoke intolerable, while others barely notice the odor in a smoke-filled room.

Courts in some jurisdictions have found that second-hand smoke rises to the level of a nuisance or a “trespass” if it exacerbates an underlying health condition (asthma, for example) of those exposed to it. But other courts have noted a distinction between an annoyance and a nuisance, finding that because a neighbor is annoyed or offended by smoke is not in itself sufficient grounds for prohibiting residents from engaging in a legal activity (smoking) inside their homes.

The Supermajority Speaks

So nuisance is simply not a strong enough peg on which to hang a cooperative or condominium association’s no-smoking policy. Boards that want to prohibit smoking in individual units should amend the co-op proprietary lease or condo governing documents, securing the supermajority vote of owners required to do so..

While the courts remain reluctant to restrict what individuals can do within their own homes, they are less likely to challenge a policy approved by a supermajority of owners than one imposed by the community’s elected board. Moreover, courts have recognized that a condo or co-op board has the right to change its governing documents and to make those changes retroactive.

In what may be the first court decision addressing the questions raised by a community association’s smoking ban, a Colorado court upheld the policy, rejecting the ‘my-home-is-my-castle’ argument of smokers, who said the ban interfered unfairly and unreasonably with their right to the full use and enjoyment of the unit they owned. In Heritage Hill Condo Owners v. Sauve(2006), the court was influenced strongly by evidence that the board had gone to great lengths to find other solutions, short of a ban, that would address the concerns of non-smoking neighbors. A well-drafted ban, properly enacted (with the required owners’ vote), should stand on its own.

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