IMPLEMENTING SMOKING BANS: THE REAL ESTATE BOARD OF NEW YORK RECOMMENDS...

Under existing law, co-op and condo boards are free to adopt a non-smoking policy covering any free-market apartment. While no laws in New York prohibit smoking within a residential apartment, a smoking ban could lower maintenance costs and insurance rates.

The Real Estate Board of New York (REBNY) — the city's leading real estate trade association, with more than 12,000 members — has created a guide to help co-op / condo boards who are considering implementing a no-smoking policy.

In most instances, implementation of a smoking ban will require an amendment to the proprietary lease or bylaws, approved by a supermajority of apartment owners. REBNY recommends consulting with your co-op board or condo association's lawyer prior to implementing any policy.

Co-ops

• An outright ban on smoking would most likely require an amendment to the proprietary lease, which would require the affirmative vote of the owners of a supermajority (typically two-thirds or 75 percent) of the shares

• The Board of Directors may consider whether the smoker’s conduct rises to the level of objectionable conduct sufficient to terminate the shareholder’s proprietary lease.  The Board of Directors could also use the prohibition against “objectionable odors” emanating from an apartment found in most proprietary leases to attempt to terminate the smoker’s proprietary lease. 

 Condos

• Condominium bylaws can generally be amended by the affirmative vote of the owners.  The Board of Managers has the ability to reject any purchaser who permits smoking in the unit.  The Board of Managers can also indicate a specific date in the future at which point no resident may smoke in the building including within the unit.

•  If the Board of Managers has the authority under the By-Laws to fine a unit owner who smokes in a unit and the smoke enters another unit, it may impose such a fine.  Absent such a provision, the Board or offended unit owner could sue the owner who smokes for monetary damages and an order enjoining the owner from smoking.