Association Tolerance for Cigarettes Is Going Up in Smoke
Despite widespread warnings about the dangers of cigarettes, you’ll no doubt have at least some smokers in the community you manage. This is especially problematic in condominium buildings, where smoke from one unit can permeate other units and common areas—leading to bitter complaints or damage that you’ll have to deal with. Some cigarette smoke complaints might even purport that the smoke is causing health issues for other members. And, in an increasingly smoke-intolerant society, courts have been ruling in favor of plaintiffs, forcing associations to try to implement smoking bans.
In New York City in 2006, a judge ruled that secondhand smoke is a “breach of the warrant of habitability” [Poyck v. Bryant, August 2006].That case helped set the stage for the ruling in a recent, groundbreaking court case in Manhattan that is extinguishing the idea that associations, including co-ops, can ignore secondhand smoke complaints or shirk responsibility to help unit owners who are being affected by smokers in the building. A state Supreme Court judge has awarded more than $120,000 in back maintenance, interest, and attorney fees to a co-op shareholder who claimed that smoke from other apartments had permeated her unit and rendered it uninhabitable. The decision put forth the idea that if associations want to be in charge of residences, they must assume the obligation to ensure that the occupants are protected from hazards such as the carcinogenic toxins found in cigarettes, which can be inhaled as secondhand smoke.
The plaintiff in the case never lived in the Manhattan apartment she purchased in 2006, because it smelled of cigarette smoke. During her ongoing dispute with the co-op board, the unit owner was advised by maintenance personnel to re-caulk areas of the apartment, and was told by the managing agent that the situation “wasn’t the building’s problem.” But now the co-op actually is on the hook for the problem. The court’s ruling puts increasing pressure on landlords, including co-op boards, to ensure that smoke doesn’t pass from one unit to another [Reinhard v. Connaught Tower Corp., March 2016].
So if you don’t have a smoking ban, now is a good time to talk with the board of directors about implementing one to head off trouble, or if your current ban isn’t comprehensive enough you should go back to the drawing board to come up with a policy that protects the health of your members—and keeps the association out of court.