Thank You for Not Smoking:
Notes on a Trend in Common Interest Communities of Absolute Prohibitions Against
Smoking WITHIN YOUR OWN APARTMENT
Matthew J. Leeds
Ganfer & Shore, LLP
360 Lexington Avenue
New York, New York 10017
©2012
Within the past decade, governmental entities have imposed numerous outright bans on smoking. Smoking has been prohibited in many public facilities and places around the country. Smoking has also been made illegal within many commercial premises, which, while private property, cater to public use and so are essentially public.
Many practitioners are now seeing moves to impose these same limits in the most private of areas: people’s homes. While more and more residential buildings eliminate smoking in public areas, the new frontier in condominium and cooperative housing corporations is to propose outright bans even inside the walls of privately-owned apartments and residential units.
Although the motivations for such prohibitions may be many, the most obvious justification is that smoke from individual residences annoys or affects or has the possibility of annoying or affecting other people in the common interest community.
Of course, many of these properties are owned and occupied by smokers whose behavior had previously been tolerated. It is even possible that in some circumstances – where construction limits the circulation of air – the fact that people smoke in their own living spaces may not have been evident. One special interesting aspect of the nature of condominiums, homeowners associations and cooperatives, however, is that even individual behavior arguably can be governed by the will of enough unit owners. Governing documentation and rules may be changed by a vote of unit owners, and new requirements can apply to everybody, even those who had been engaging in the once permitted and now proscribed behavior.
Because this is a developing area and these materials are intended only to be an introduction to the issue, they are submitted merely as a report from the frontlines (and, forgive us, are New York-centric). There are many questions and it is unclear if there are generally agreed on, let alone definitive, answers.
I. In the Past.
A. Attitudes. Smoking was more common; more tolerated.
B. Changes in construction. Many older buildings were built to permit less circulation of air among apartments and common areas than is the norm in methods of contemporary construction. This affects not only new construction but also the subdivision of old-fashioned bigger apartments. Also, with renovations, holes (e.g., as minor as those to hang cabinets) may be created, permitting “migration” of odor and smoke.
II. Reacting to issues with smoking, prior to explicit (pro-active) smoking bans.
A. Governing documents. Express prohibition on unreasonable odors. For example:
“The [owner] shall not permit unreasonable cooking or other odors to escape into the building. The [owner] shall not permit or suffer any unreasonable noises or anything which will interfere with the rights of other [owners] or unreasonably annoy them or obstruct the public halls or stairways.”
B. Right of quiet enjoyment. Explicit in proprietary leases in cooperatives. Several jurisdictions have spoken to this; see, e.g., Dworkin v. Paley, 93 Ohio App. 3d 383 (1994).
C. Warranty of habitability.
1. Common law.
2. Explicit (e.g., in a proprietary lease in a cooperative).
3. Statutory (e.g. New York Real Property Law Section 235-b). Perhaps only in rental situations (including cooperatives), but not in condominiums, Frisch v. Bellmarc Management Inc., 190 A.D. 2d 383 (1st Dept., 1993).
4. Second-hand smoke can be a breach of the warranty of habitability: Poyck v. Bryant, 13 Misc3d 699 (Civ. Ct. NY Co, 2006).
D. “Old-fashioned” control by management. Not unusual to craft political solutions based on voluntary cooperation, such as accommodations that a smoker use smokeless ashtrays and air purifiers, or only smoke in rooms from which the odor does not escape.
E. Board action to enforce house rules or by-laws. (Akin to breach of contract?)
F. Private Nuisance/Trespass; Separately, Negligence. Direct action by one unit owner against another unit owner for relief. Herbert Paul, CPA, P.C. v. 370 Lex, LLC, 7 Misc.3d 747 (Sup. Ct, NY Co 2005).
1. The mere existence of smoke is not necessarily actionable as a tort in all instances. As a Florida Court said in Merrill v. Bosser, (Broward Co. Ct, 17th Judicial Circuit, Case No. 05-4239 COCE 53): “To start with, the Court believes that it is appropriate to state what this case is not about. This is not a case about secondhand smoke. Rather, as persuasively argued by the Plaintiff, it is about excessive secondhand smoke.”
2. Similarly, a formulation from 1876: “[N]ot every intrusion will constitute a nuisance. Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other…If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life…” Campbell v. Seaman, 63 NY 568 (NY Ct. Appeals, 1876), quoted in Ewen v. Maccherone, 32 Misc. 3d 12, 927 NYS 2d 274 (Appellate Term, 1st Dept., May 26, 2011). Ewen further updates the thought: “To the extent odors emanating from a smoker’s apartment may generally be considered annoying and uncomfortable to reasonable or ordinary persons, they are but one of the annoyances one must endure in a multiple dwelling building…especially one which does not prohibit smoking building-wide.”
G. Case study: “El Dorado co-op wants to evict “smoking” trust-fund transsexual stinking up swank CPW complex,” New York Post, July 20, 2012.
At 300 Central Park West (Action, 300 CPW Apartments Corp. v. Wells, Sup. Ct. NY Co, Index No. 154658/2012), unit owners had complained about excessive smoke from a particular apartment. The corporation had requested that the smoking cease and had also asked that the smoker make repairs to the apartment, such as plugging certain holes, so that smoke did not escape from the apartment.
The corporation sought an injunction (i) to get access to the smoker’s apartment to do repairs to keep second-hand smoke from escaping; (ii) directing the smoker to use air purifiers and to maintain them after repairs were done; and (iii) enjoining smoking in the apartment until repairs were performed. If, in fact, repairs did not contain the smoke, would the injunction be permanent? (Also, remember that the owner of the smoker’s unit could be held liable to pay the costs of the Board).
1. Owners must allow access to a Board to perform work required on the building (e.g., Grinnell Housing Development Fund Corp. v. McClain-James, 240 A.D.2d 203, 658 NYS2d 33 (1st Department 1997).
2. Board can enjoin an owner who is engaging in conduct harmful to another unit owner (e.g., Trump Plaza Owners Inc. v. Weitzner, 47 A.D.3d 525, 849 NYS2d 554 (1st Dept., 2008) enjoining owners from yelling and screaming in their own apartments or common elements; Zipper v. Haroldon Court Condominium, 39 A.D.3d 325 (1st Dept. 2007) condominium board evicted tenant of a unit who permitted objectionable odors constituting a nuisance to emanate from the apartment.
III. Frequently encountered contemporary attitudes and factors.
A. Fewer smokers.
B. More concern over potentially deleterious effects of second-hand smoke on health.
C. Issues affecting value of apartments. Prohibition of smoking might reduce the number of potential purchasers by eliminating smokers, or might increase a building's desirability to some by creating a smoke-free environment.
D. Limitations on smoking by governments, private industry and in the workplace.
E. Potential decrease in maintenance costs, with elimination of smoking (e.g., argument that smoking creates attendant incidental damage, creation of waste and litter, necessity of additional cleaning to combat odors, etc.).
F. Potential reduction in fire hazard if unit owners do not smoke.
G. Fashion, or mainstream consideration and acceptance of smoking bans. “Upper West Side Condo Votes to Ban Smoking,” Vivian S. Toy, The New York Times, May 12, 2011. There are more examples all the time of buildings considering a ban, and seemingly just as many articles about the common interest communities adopting such limitations.
IV. Potential sources of authority to prohibit smoking in apartments, not just to enforce rules against individual violators, whether by the Board or privately.
A. Governing documents.
1. Declaration and by-laws, usually amended by super-majority vote of unit owners.
2. Case law supporting a common interest community adopting a complete smoking ban, including within apartments. Christiansen v. Heritage Hills 1 Condominium Owners Association (no. 06-CV-1256) (Colorado District Court, November 7, 2006). “…[A]nyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.” Lamden v. LaJolla Shores Condominium Homeowners Association, 980 P.2d 940, 953 (Cal. 1999).
3. Notions, in a condominium, that although there is independence of an owner of real property to do what the owner wants, there is recognition of the commonality of the mini-democracy and majority rule.
4. Rules and regulations, which can often be amended merely by the Board. For a consideration of whether, under a particular statute and particular condominium documents, a certain restriction can be instituted by rule rather than by amendment to by-laws, see Johnson v. Keith, 331 NE2d 879 (Sup. Jud. Ct. Massachusetts, 1975), which determined that restrictions on use and maintenance of units can only be accomplished in the by-laws.
5. Possible limitation that without appropriate authority in condominium documents, Board action alone might not be supportable. Ewen v. Maccherone, above:
“Defendants’ conduct and smoking in the privacy of their own apartment is not so unreasonable in the circumstances presented as to justify the imposition of tort liability against them…. Critically, defendants were not prohibited from smoking inside their apartment by any existing statute, condominium rule or by-law.”
Note that in this instance, there were prohibitions in the governing documents against smoking in common areas, but no reference to activities within apartments.
6. Ezrah, “Get Your Ashes Out of My Living Room!: Controlling Tobacco Smoke in Multi-Unit Residential Housing," 54 Rutgers L Review 135 (2001).
V. Considerations in Formulating a Ban.
A. Rights and sensitivities of all owners.
B. Exploration, formulation and documentation of reasons. Although there is no statement yet of requirements of legislative-type findings in this mini-democracy, it cannot hurt.
C. Potential desirability of alternatives to achieving result (construction requirements, etc.).
D. Political presentation for consideration to population: Town Hall discussions, etc.
E. Viewpoint on effects, if any, on values.
F. Effect on existing owners.
1. Phase-in measures; grandfathering.
G. Use amendment of constituent documents (e.g., by-laws) by unit owners, especially one requiring super-majority rather than mere amendment of rules and regulations by Board.
H. Formulation that specifically addresses behavior within apartments.
I. “Slippery slope” of other behaviors that might be targeted once the idea of such controls is accepted.
J. Intrusive? Paternalistic? Altruistic?
VI. Interesting current developments.
A. Perhaps a Board does have an obligation to investigate and act on a complaint from a unit owner to prevent harm to a unit owner from another unit owner (at least in a cooperative). Reinhard v. Connaught Tower Corporation, Index No. 602503/08, 2011 WL 6119800 (Sup. Ct. NY Co, Nov. 30, 2011).
B. Alternatives to outright bans or amendments to governing documents include individual requirements in connection with granting consents to the sales of apartment, grandfathering and designating smoking apartments.
C. The cutting edge is now created by those buildings that have adopted bans. As an example of language used, the following has been added to the by-laws of a high-rise condominium in New York City:
“The Residential Section shall hereby be entirely smoke-free, including, without limitation, all Residential Units, Residential Common Elements and Residential Limited Common Elements including, without limitation, the Units, the hallways, stairwells, lobby, amenity facilities and roof. This smoke-free rule applies to all Residential Unit Owners and any guest, agent, licensee, tenant or invitee of a Residential Unit Owner, all of whom are hereby prohibited from using or permitting any lighted cigarettes, cigars, pipes, or any lighted object, device, matter or substance in the Residential Section.”
D. Issue as to whether a state’s condominium statue that merely provides that the by-laws may include restrictions on use and occupancy means that only explicit prohibitions contained in the by-laws can create a restriction, leaving doubt as to whether management can be effected by either (i) general provisions for decorum that do not specifically proscribe certain behavior or (ii) rules and regulations, rather than in the declaration or by-laws. Addressing similar concerns, some comments on proposed later generations of the Uniform Common Interest Ownership Act suggested that instead of providing that a condominium declaration must contain “any restrictions on … use, occupancy and alienation of units,” greater flexibility was intended by revisions that would allow an association to adopt rules and regulations regarding occupancy of or behavior in units that might affect other unit owners.
E. To avoid doubt as to whether the power to regulate behavior includes the power to ban smoking within a unit, some states have looked to amend their statutes with specificity. Example:
Utah Code 57-8-16(7)(b): “The by-laws may provide for the following: …restrictions regarding the use of the units may include other prohibitions on, or allowance of, smoking tobacco products…”
Similar substantive measure introduced in Illinois legislature for 2011-12 session, sent to committee.
F. Release by the Real Estate Board of New York, sensitizing owners of buildings to smoking issues. [Attached]
G. Proposed New York City Local Law that would require residential buildings to file their smoking policies. [Attached]
H. Opinion of Hawaii Attorney General that Condominium can ban smoking in Units and lanais (if by-law is adopted). [Attached]
VII. Summary:
Asked by Habitat Magazine in its May, 2012 30th Anniversary issue to predict a big issue in common interest communities over the next ten years, a compiler of these materials suggested, at page 85: “It would not be surprising if, over the next decade, many cooperatives and condominiums banned smoking entirely, even within apartments. There are considerations of the privacy of owners and existing residents who smoke. At times, management might explore alternate amelioration by the use of filters and other devices. It is uncertain whether a prohibition would affect values, perhaps by limiting the number of potential purchasers or at the same time by making the building more attractive to some. As with many difficult life style decisions, management will often want to consider involvement of owners in the development of any smoking policy. In fact, strong action might often require a super-majority vote of owners to amend the by-laws or the proprietary lease.”