Concern over health, the environment, and an evolving legal landscape has prompted a number of condo and co-op boards in communities across New York City’s five boroughs to ban cigarette smoking not only in common outdoor areas but in individual units. This restriction has ignited a heated debate over health/nuisance vs. individual rights, and both sides can be vehement in advocating for their position.

This follows on the heels of the 2002 decision when Mayor Michael R. Bloomberg surprised many residents and tourists alike when he passed legislation enacting a ban in restaurants and bars. Last year, the Bloomberg administration extended the smoking ban to city parks, beaches, public plazas and boardwalks.

Building-wide smoking bans are a hot topic these days for boards and residents alike. It’s difficult issue to traverse however, situated as it is at the intersection of public health and private property.

“The talk of banning smoking amongst co-op and condo boards is on the rise,” says Georgia Lombardo-Barton, president of the New York City-based Barton Management LLC. “With the issue so prevalent, a number of unit and shareholders are lobbying board members and management to take stronger measures to eliminate smoking in their buildings.”

This pervasive, volatile issue is not just a New York movement as cases of smoking bans have been realized across the nation. For example, the municipality of Belmont, California passed a law in 2009 outlawing smoking in all apartment buildings, which resulted in both cheers and outrage from renters and unit owners.

A Healthy Perspective

A May 2012 Quinnipiac University poll says that New York City residents would prefer to live in a smoke free building by a 59 to 34 margin, but the same residents believe 53 to 44 percent that City Hall should not pressure building owners to ban indoor smoking.

“New York City residents have a love-hate relationship with ‘Nanny Government .’ They would like their landlord or the condo or co-op board to ban indoor smoking, but they don’t want City Hall to pressure building owners to take that step,” stated Maurice Carroll, director of the Quinnipiac University Polling Institute in a recent press release.

As far as the Big Apple is concerned, “The genesis of this policy comes from New York City’s initiatives for improved health practices,” says Lombardo-Barton. “With the heightened awareness of the harmful effects of second-hand smoke and with more and more residents expressing how the smell of nicotine affects their quality of life, boards are becoming more sensitive to their requests.”

Sherwin Belkin, a founding partner at the New York City real estate law firm Belkin Burden Wenig & Goldman, LLP, worked on the first real estate deal to create a smoke-free building in New York City in 2009. Belkin drafted the lease and rider that banned smoking in all 298 units as well as private and shared terraces for the 1510 Lexington Avenue building.

“There was practically no resistance from the tenants because it was a new rental building,” says Belkin. “Tenants were really part of the program from day one. They understood that the lease and right to rent was being offered to them in reliance upon their representation that they would not smoke or permit smoking in the building.”

For smokers, the issue is one of personal choice and property rights, as many believe they should be free to smoke in the private confines of their apartment or unit. There has been push-back against bans by pro-smoking organizations such as Citizens Lobbying against Smoker Harassment (CLASH). A recent press release from CLASH founder Audrey Silk underscored the group’s general stance on banning. “It’s time to take this country back from the cultists mistakenly referred to as public health and let the deprogramming begin,” Silk stated. “Smoking is okay... as an informed adult’s choice. Once chosen there’s nothing to be ashamed of, nothing to apologize for, and we certainly don’t need anyone’s approval or permission nor to be banished like criminals from view.”

Silk would be correct if the smoke did not impact others in the setting of a multifamily building, notes attorney Kenneth Jacobs, a partner with the law firm of Smith, Buss & Jacobs, LLP in Manhattan. “I believe that a co-op or condo association would have the right to treat any exfiltration of smoke into common areas or other units as a nuisance.”

While health is by far the leading concern brought up in the to-ban or not-to-ban debate, the issue of property value is often invoked as well—by both sides. “[Improved] property values as an argument for banning smoking is legitimate,” says Jacobs. “However, the health impact remains the best argument, because those in opposition [to a building-wide ban] can easily find a broker who will tell their board that a ban on smoking will adversely impact property values because Europeans, for example, like to smoke, and may take their business elsewhere.”

In other cases, boards remain skeptical—due in part to widely-publicized cases such as Lincoln Towers. In 2002, Steven D. Sladkus, an attorney with Manhattan-based law firm Wolf Haldenstein Adler Freeman & Herz LLP, represented the co-op, which was one of the first to attempt a building-wide smoking ban. The board was committed to seeing the ban through—but they did an about-face when they learned that their insurance company would not pay any claims for resulting damages.

“The insurance company gave the board a lot of flack because they didn’t want to be the test case,” says Sladkus. “One of the reasons was the concern that someone would sue, claiming they were discriminated against due to their disability: addiction to smoking, which I am a firm believer they couldn’t sue over.”

On the other hand, attorney Jeff Buss, also of Smith Buss & Jacobs, LLP, who litigates disability cases on behalf of co-op clients, explains that an association indeed might be forced to allow smoking within a unit as a 'reasonable accommodation' for a disability—if addiction to nicotine can legitimately be considered as such. “If the smoke is penetrating into common areas or other units, allowing the owner to continue smoking would be unreasonable per se. However, if the shareholder/unit owner is willing to pay for the cost of sealing his unit and venting the smoke to the outside, he might be permitted to continue to smoke.”

Co-op & Condo Procedures

As more boards field complaints from disgruntled unit owners about seeping smoke, the question on how best to proceed becomes a necessary starting point. The execution is different for co-ops and condominiums, explains Sladkus. “I have seen more interest over the last few years from buildings that want to ban smoking; however it is a drastic move, which is why many boards hesitate. With that said, there are many co-ops and condominiums that are pursuing this measure.”

With regard to protocol and procedure, Sladkus explains that a condominium board must first amend the existing bylaws, which requires a certain unit-owner vote (approximately two-thirds or 75 percent). “If they meet that percentage of votes, then they can turn the building into a non-smoking building,” he says. For a co-op, there are two possible approaches. First, the proprietary leases can be amended, which also requires shareholder vote. Another approach is for a board to adopt a policy moving forward not to approve any purchasers who smoke. “This slowly weeds out smokers,” says Sladkus but he concedes, “It doesn’t address the smokers that are currently living in the building.” For those existing smokers who may take issue with amendments that lead to a smoking ban, Sladkus says, “The minority has to go along with what the majority has decided.”

Often when a board decides it will broach a difficult issue such as banning smoking, it will look to its management company for advice. “As in any major policy change, management would be the conduit to the unit owners,” says Lombardo-Barton. “We would recommend a special town hall-style meeting in addition to sending residents email notices and written letters explaining the pros and ramifications of the policy.”

While the board and residents are directly impacted by such actions as a ban, so is the management company. “Although a smoking ban would eliminate a number of health claims relating to exposure to second-hand smoke, we foresee a number of other quality of life concerns developing with those owners who have lived in the building for many years and are smokers,” says Lombardo-Barton. “Being able to properly police this policy could become an issue. Unlike nuisances due to water leaks and no floor covering, trying to determine the perpetrator who caused the smoke smell, especially in a large building, could be challenging.”

For most irritated neighbors claiming that secondhand smoke is interfering with their health or the health of their children, look to a “nuisance” clause, which is noted in all bylaws and proprietary leases. In the 2010 case, Ewen v. Maccherone, a condominium unit took his neighbor to court because secondhand smoke was adversely impacting his quality of life. Initially the condominium board ruled that since there wasn’t an individual unit smoking ban, the case was without merit. However a judge saw the case differently and allowed it to proceed.

“A shareholder who is smoking holds to the position that they are engaging in a legal activity, and the reason the smoke is bothering their next door neighbor is not their fault. They might rightly claim that it’s the association’s fault because there are leaks in the floor, defects or voids between walls and ceilings,” says Jacobs. “There was a case in California where a condominium demanded that unit owners pay for the sealing of their property, but a court decided that was the responsibility of the association, which came at a great cost. You have to be careful what you wish for sometimes.”

A Smoke-Free Future?

With more buildings going smoke-free—including new rental buildings with non-smoking lease stipulations—it seems logical that in ten years time, a non-smoking building will be as common as a non-smoking bar. “This trend will accelerate, and if boards are given the legal power to ban smoking, they will do so,” says Jacobs.

For the time being, the issue continues to evolve with industry professionals learning by way of example. “Currently, we have one Upper East Side condo that is planning to propose a smoke-free bylaw amendment at their upcoming annual meeting,” says Lombardo-Barton. “Although there is mixed sentiment amongst the board members, there is a general consensus that this approach would benefit the unit owners and make the building more attractive to prospective buyers.”

As is the case with all building-wide initiatives, Sladkus says passing a smoking ban comes down to politicking. “Most of the time with these cases, people will see the benefit but there are others who feel there is simply too much interference from the board in their own apartment.” While it’s logical to assume that demographics play a role in which buildings are seeking a smoking ban, Sladkus says it isn’t cut and dry. “While I think that young people are more aware of the health risks with smoking, in the buildings we represent, I have seen both younger unit owners and those of the older generation looking to ban smoking.”

For many board members new to the issue, there are avenues to explore when deciphering the next best steps. “With information is so easily accessible via the Internet, there is plenty of information to develop a smoking-ban marketing plan,” says Lombardo-Barton. “However, we would recommend speaking with the property’s attorney for preparing a bylaw amendment or other doctrine in conformity with existing building policy.”

W.B. King is a freelance reporter and writer and a frequent contributor to The Cooperator. Staff Writer Christy Smith Sloman contributed to this article.