Managing Secondhand Smoke in a Smoke- Permitted Building

James Glatthaar

Partner, Bleakley Platt & Schmidt

What happened. There is a condo on the beach in Rockaway that allows smoking in apartments but not in the building’s common areas. The condo’s bylaws, however, prohibited smoke from infiltrating into adjoining apartments or the building’s common areas. A unit-owner claimed that he was getting secondhand smoke into his apartment from his neighbor’s. He complained to the board, the building staff and the managing agent, and the board fined the neighboring unit-owner. That person protested, and the board removed the fine and didn’t take any further action. At that point, the aggrieved unit-owner sued everyone to try and get the smoking stopped. 

The court ruled. The unit-owner lost. He made the argument in court that secondhand smoke is a known carcinogen. The judge, however, said that since the condo allows smoking in units, it’s not inherently unreasonable if secondhand smoke escapes. That’s not what the owner was saying, though. He was saying he just didn’t want any smoke in his unit, and he is entitled to that under the condo’s bylaws. You’ve got a guy saying, I have a right not to be subjected to dangerous, toxic odors in my unit, and the court system says, well, you didn’t give us enough proof. This decision reminds me of something an old attorney once told me when I was just starting out. Some judges are so impractical it’s surprising they can even find their way to the courthouse every day.

The fallout. If the unit-owner decides to sell his apartment, he could run into a problem. Many contracts of sale require the seller to say no known unreasonable odor complaints exist, so this may be problematic. The risk to the board, however, is that the unit-owner won’t stop the lawsuit, the condo could be on the hook for more legal fees, and those fees might not be covered by insurance. Eventually the appeals court will probably rule on this issue, and it is likely that they will find secondhand smoke to be a danger and a board is under an obligation to ameliorate this. 

The issue of smoke in apartment buildings is very, very difficult to resolve. Smoke seems to go everywhere and I don’t know that there is a practical solution to confining it. Even though the judge didn’t think it was unreasonable for second-hand smoke to travel, I disagree.