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When Secondhand Smoke Seeps In

Richard Siegler in Co-op/Condo Buyers

22 W. 15th Street, Chelsea, Manhattan

Warrant to Arrest Smoke

Poyck did nothing to curtail the neighbors' smoking. About 30 days later, the Bryant wrote to Poyck, notifying him that, "Due to my wife's continuing health concerns and our most recent and apparently ongoing 'smoking' issue with our next door neighbor" that they would be vacating by the end of the month. Poyck shortly afterward sued the Bryants, to collect rent for August through December 2001.

Neither party had asserted claims against the condominium's board of managers because the warranty of habitability did not apply between the board of managers of a condominium and an individual unit-owner. But the Bryants had on their side Real Property Law (RPL) Section 235-b as defense against Poyck, the landlord in this action.

The court held that under that section, the acts of third parties — in this case, the neighbors in 5-C — are within the scope of a landlord's responsibility. The landlord also has an obligation to ensure that conditions do not render the apartment "unsafe and uninhabitable" or prevent the premises from serving their intended function of residential occupation. When neighbors fail to respect each other and the landlord does not act, the law imposes its will on both.

The warranty of habitability's parameters were defined by the Court of Appeals in the landmark case Park West Management Corp. v. Mitchell (1979). It requires a landlord to have a premises fit for human habitation; that the condition of the premises is in accord with the uses reasonably intended by the parties; and that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety. Landlords must warrant against "latent" and "patent" conditions throughout the entire tenancy "occasioned by ordinary deterioration, work stoppage by employees, acts of third parties or natural disaster..." The standard for a breach is measured "in the eyes of a reasonable person."

The court said that secondhand smoke was as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, water leaks and extreme dust penetration. Therefore, the court held, under the proper circumstances, secondhand smoke qualified as a condition that invoked the protections of Section 235-b. As such, the court held it axiomatic that secondhand smoke could be grounds for eviction.

The court then had to consider the operative facts in this particular case, to determine whether the secondhand smoke was so pervasive as to actually breach the warranty.

The Condo Board's Responsibility

While Poyck contended he had no control over the neighbors in 5-C, he failed to offer evidence that he took any action at all to eliminate or alleviate the hazardous condition. Poyck, said the court, could have asked the condo board to stop the neighbors from smoking in the hallway and elevator, and to properly ventilate unit 5-C so that the secondhand smoke did not seep into the Bryants' apartment. RPL Section 339-v(1)(i) mandates that condominium bylaws restrict the use and maintenance of units and common areas alike so as to "prevent unreasonable interference with the use of respective units and of the common elements by several unit owners."

The board of managers and even Poyck could have begun an action for damages or injunctive relief for noncompliance with the bylaws and decisions of the board. Moreover, in the case of "flagrant or repeated violation" by a unit-owner, the Condominium Act (Real Property Law Section 339-j) also authorizes the board to impose appropriate measures to ensure compliance.

While secondhand tobacco odors have long been viewed as a nuisance, the courts now treat it as a health hazard that may be regulated.


Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat March 2007. For the complete article and more,  join our Archive >>

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