Ingrid Manevitz, Partner, Seyfarth Shaw in Legal/Financial
The pervasive smell of marijuana in New York City is presenting challenges for co-op and condo buildings as residents complain about smoke and odors. Since August 2018, a mandate has required all residential buildings to establish a smoking policy and inform residents on the details. However, marijuana complaints can happen in both buildings that prohibit smoking as well as buildings with more relaxed smoking policies. Marijuana is typically referenced in the building’s smoking policy, as are vaping and e-cigarettes. When dealing with complaints, boards should carefully examine their governing documents to ensure they have the authority to address smoking issues, including marijuana, within the building as well as in individual apartments. It’s also important for the board to tailor smoking policies to strike a balance between individual rights of residents and the well-being of the entire community.
Handling complaints. When faced with complaints about marijuana odors, boards should keep a detailed record of each event. Residents should first notify management or building staff, who should go to the apartment to verify the complaint and identify the source of the smoke. It’s important to investigate and address complaints promptly, speaking to residents and identifying who else in the building is affected.
There may be some hesitation by the board in tackling marijuana smoke, since it’s not unlike consuming alcohol within the confines of an apartment. However, drinking typically doesn't impact neighbors, whereas smoking marijuana can be problematic if it's impacting other residents. Clearly, boards need to strike a balance between enforcing policies and respecting residents' rights. The key lies in addressing the impact on neighbors and the overall community. A resident can seek reasonable accommodations if there’s a medical basis for using marijuana. However, in most situations medical marijuana is ingested in alternative forms, and having a medical need to use marijuana doesn't automatically grant the right to smoke it.
Fines and injunctions. An attorney can advise boards that choose to amend their to deal with persistent smoking issues. The authority to impose fines for smoking in co-ops must be explicitly stated in the proprietary lease. In condos, the right to issue fines needs to be outlined in the bylaws. Sometimes the proprietary lease will go into specifics about what the fine amounts should or can be and the maximum penalty. Oftentimes, the governing documents just have some loose language as to what the fine amount can be.
There are certainly benefits to being able to impose fines. Smoking issues usually start as smaller legal matters, but if they are not addressed properly the problem can end up escalating when perhaps monetary fines could have resolved the issue more simply. In cases where fines prove ineffective, boards may seek an injunction through legal channels. If a resident violates a court order prohibiting smoking, a board would then be seeking to hold them in contempt of court, which could come with additional fines which is a very serious offense and could come with fines and even imprisonment.
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