Q: I live on the top floor of a seven-story Manhattan co-op, with windows facing the back of the building. The first-floor rear shareholders have decks outside their apartments. Frequently, the smell of marijuana enters my apartment, either from people using their decks or from people with open windows. The odor is noxious. Can the co-op board restrict the use of marijuana so the fumes do not reach other apartments?
A: Even if you do not live in a smoke-free building, the co-op board may have the authority to regulate what happens on the building’s balconies, decks and patios, replies the Ask Real Estate column in The New York Times. But when considering new rules, the board also has to balance your concerns with your neighbors’ desire to enjoy their outdoor space.
Some buildings have amended their rules to prohibit smoking on terraces for this precise reason — "because it goes into somebody else’s window,” says Steven Sladkus, a partner at the law firm Schwartz Sladkus Reich Greenberg Atlas, who has seen this issue come up with cigar smoke.
Sladkus likens such a rule to the way boards often limit the furnishings you put on a roof deck or balcony. A board might ban heavy planters because they could damage the integrity of the roof, or they might regulate what types of chairs and tables you use outside because a light one could become airborne in a strong wind and harm someone.
But unlike a piece of furniture, which everyone can see all the time, smoke is elusive. The board would need to investigate your claim. It could be difficult to prove that your neighbors are the ones responsible for the odor. How do you prove that someone is opening a window and blowing smoke, and that that smoke is entering your apartment? As for the outdoor smoking, your apartment is a distance from the first floor. “In this particular case," Sladkus says, "seven floors up seems pretty tenuous.”
Before the board makes a rule that regulates how residents enjoy their outdoor space, it needs to investigate the claim and make sure it’s legitimate. “Is it really, really warranted?” Sladkus asks. “People have outdoor terraces for a reason — to enjoy the outdoors.”
The onus is on the complaining shareholder to provide evidence that the board can investigate. "Make sure you get proof," advises Marc Schneider, managing partner at the law firm Schneider Buchel. "If you think you know the source, make sure you've got the right person. Get other shareholders or the super involved. If the board brings a legal action against the wrong person or doesn't have witnesses, it will make the matter worse. It's not a question of legality of smoking marijuana; it's a question of something disturbing a neighbor. And boards can't ignore it."
You might consider making a video that shows the smoke drifting through your windows. Ask other neighbors if they’re bothered by the smoke, too, particularly ones who live on lower floors. If this issue is widespread, affecting multiple apartments, you might have a stronger case to put an end to weed smoke wafting up from below.
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