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The Smoke Free Air Act

Oct 01, 2018

Emanuela Lupu-Ferrante, Partner, Spolzino Smith Buss & Jacobs

New York City has recently passed regulations requiring all boards of co-ops and condos to pass a policy with respect to smoking and to notify all their residents of that policy and post it in the building.


This should motivate all boards to begin thinking about what they want and what their residents want with respect to smoking and the quality of life in a building. Many boards have passed policies prohibiting smoking within apartments. Those  are enforceable only through proprietary-lease amendments, and to amend those requires a shareholder vote.

The Smoke Free Air Act (SFAA) 

The Smoke Free Air Act, signed into law in 2002, made smoking illegal in most indoor places, including bars, restaurants, clubs, offices, and many other areas. In 2011, New York City Council expanded the law to ban smoking in parks, beaches, pools and other areas run by the New York City Parks Department. By August of this year, all residential buildings, including co-ops and condos, were required to create and post a written policy stating where smoking is permitted or prohibited. The regulation does not prohibit smoking within apartments, nor does it require that any specific bans be included in a building’s policy. Rather, it’s a disclosure statute, enacted so that prospective purchasers can make an informed decision as to whether a building’s policy is one they can live with. (The Smoke Free Air Act)


It is much easier to enforce your rules when they are solidified through proprietary-lease amendments. That's not to say that you can't do anything about smoking if it's not in the proprietary-lease amendment. All proprietary leases prohibit shareholders from allowing odors to exit their apartments, both into common areas as well as into other apartments.


The best method for adding a smoking prohibition is to set up a system in which you inform your shareholders about the positives and the negatives of passing such a rule. Secondhand smoke is very dangerous, but it also affects the quality of life of individuals. And smoke has a funny way of making its way throughout buildings –  both into common areas as well as other apartments.


We have come across this issue in many buildings and, most recently, we had a long and complex litigation in one building over this issue – and the shareholder ended up getting evicted for smoking in his apartment.


However, it becomes much more difficult to prove the source of odors and the passage of odors. In some buildings where they haven't prohibited the smoking within the apartments, they come up with a problem in which one resident or a number of residents are complaining about the odor of smoke. They now not only have to prove that the individual in question is smoking in his apartment, but they also have to prove that it's the same smoke that's emanating into those other apartments. And I'm sure you can understand why that's a much more difficult task.


In buildings where this is an issue, boards should think about amending their lease. That requires calling a special meeting of the shareholders and taking a vote. Most often this is achieved through the use of proxies, which most buildings use for lots of different purposes. We found that it is relatively simple to pass because even most smokers don't smoke within their apartments.


This makes the ability of the board to address the concerns of their residents much simpler and much less expensive. Because at the end of the day any time you want to enforce one of your rules or your policies you have to use your lawyers, or your managing agents, or other professionals. The simpler the case, the easier and less expensive.


If the board has amended its proprietary leases, all they have to prove is that the individual is smoking in the apartment in violation of that amendment. You may have to hire special engineers or professionals who can trace the source of the smoke. That can be expensive.


Some boards don't realize the importance of paying attention to those types of complaints. As a co-op, you are a landlord and your shareholders are residents. As the landlord, you have  an obligation to maintain the habitability of their units. If a shareholder can establish that the presence of the smoke has made it very difficult or impossible for them to live in their apartment, there is liability to the board and to the corporation for that.


So I urge all boards to pay attention to people when they're making and lodging viable complaints because those shareholders could take those complaints further. They could seek abatements of maintenance, and they could seek damages. There are lots of possibilities. Planning for that in advance is really the way to go.

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