Ask Habitat: Can a Co-op Board Legally Institute a Smoking Ban?
May 26, 2014 — Arthur Weinstein, an attorney in private practice who has successfully enacted smoking bans in New York, says that many co-ops already have restrictions in their proprietary leases against noxious odors and/or disturbing neighbors. That — combined with recent court cases that say second-hand smoke is a violation of the warranty of habitability — gives boards the right to prohibit smoking in a building.
But only, insists Weinstein, if there is a complaint.
This last point is key. According to the lawyer, if there is no complaint, under the house rules, there is no cause for action.
But some lawyers disagree. Attorney Stuart Saft, a partner at Holland & Knight, argues that a board has the right to ban smoking without a complaint. He has helped a number of co-ops to do so.
Attorney Abbey Goldstein, a partner at Goldstein & Greenlaw, believes that amending the house rules should be enough to impose a ban.
"House rules typically are permitted for the regulation of day-to-day affairs," she says, "everything from whether or not you have to have carpeting in your apartment to whether you can put your umbrella in the hallway. If you can do that, then certainly you can limit the exposure for other people to toxic substances."
Saft argues that the best way to implement a successful smoking ban is to amend the co-op's proprietary lease or condo's bylaws. Since it is a major change in building policy, he argues that, to be on the safe side, a supermajority (usually 66 2/3 of resident-votes) must be in favor of the change. The amendment would thus carry more weight and be less open to legal challenge and would also be harder to reverse by a subsequent board.
Adapted from "Are Smoking Bans Legal?" by Tom Soter (Habitat, June 2014)
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