All of us have caught the whiff of secondhand smoke from a passerby or a fellow patron at a restaurant or even neighbors on their balcony. And for most nonsmokers, it’s a fleeting irritation, gone in an instant. But what if it’s more than that?
In the right amounts, over enough time, secondhand tobacco smoke can cause damage to personal property and personal belongings, such as furniture, clothing, carpeting, and painted or wallpapered surfaces, according to Steven Hirsch, executive managing director at FirstService Residential.
How does a neighbor’s smoking affect another unit in that way? Hirsch explained: “Smoke can seep between apartments where there may be openings, such as wall partitions or cabinets between apartments, piping and pipe chase risers, exhaust vent ducts, or other HVAC (heating, ventilation and air conditioning) mechanical equipment.”
That’s bad -- and here’s the worse news: your co-op can be held legally liable if secondhand smoke damages other units in the building.
Reinhard v. Connaught Tower Corp. & Olick
In Reinhard v. Connaught Tower Corp. & Olick, a New York state Supreme Court judge awarded more than $120,000 in back maintenance, interest and attorney fees to a co-op shareholder who claimed that cigarette smoke from other apartments had permeated her unit and rendered it uninhabitable.
In his decision, which is currently under appeal, Justice Arthur Engoron wrote: “This Court...is only saying that if you want to avail yourself of the right to rent out residences, you assume the obligation to insure that your tenants are not forced to smell and breathe carcinogenic toxins.”
The judge determined that “significant cigarette smoke permeates and pollutes the apartment.” He then essentially ruled that landlords, including co-op boards, are responsible for ensuring that smoke doesn’t pass from one unit to another. The judge recognized that it could be extremely costly to prevent the smoke passing from one apartment to another, but said that a landlord has the option of excluding smokers from the building.
Fallout from the Decision
What does this mean for co-op boards? “There is no question that Coop Boards are now on notice to assume a more active, responsive position in managing smoke odor nuisance complaints as a result of the decision in the Reinhardt case,” Hirsch said. It’s already the case in New York, that every cooperative corporation must ensure that it is complying with the Warranty of Habitability statute (Real Property Law 235-b), which covenants that the premises are "fit for human habitation for the uses reasonably intended by the parties (in this instance, the coop and the shareholder), and that the occupants shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety."
What Can Be Done About Secondhand Smoke?
Taking a complete ban of smoking out of the equation for the time being, what can a co-op board do to prevent a health and safety hazard from secondhand smoke?
Based on the Reinhardt decision, boards must understand that secondhand smoke is considered dangerous, and that they cannot ignore claims by any resident that secondhand smoke is permeating an apartment. Action is required.
The first step to respond to any complaint is to investigate. Engage an environmental engineer to study the problem and in particular, the source of the smoke the resident is complaining about. Based on that report, the board can evaluate potential solutions based on their likelihood of success versus the cost to achieve the success.
Is this a violation of community policy? Boards should consider reviewing their governing documents, including House Rules, to determine if there is language that will allow co-ops to institute monetary penalties for violations when smoke is found to be emanating from a shareholder's apartment, or when no action is taken to correct the condition or behavior after proper and reasonable notice is given to them.
Boards should consider establishing a smoke restriction policy, which is different from a smoking ban. Smoke restriction focuses on keeping the smoke in the smoker’s unit and from affecting others nearby. Investigate possible protocols for managing smoke odor penetration with stated consequences for violations of such protocols. Those protocols might include requiring filtration or air purification systems, and/or inspections of HVAC equipment and of conspicuous openings between apartments.
Boards should consider establishing procedures that require an inspection by the building staff whenever walls, partitions or penetrations between apartments are open or exposed during alterations or repairs.
Boards should consider requiring that applicants for the purchase or sublet of an apartment unit comply with the co-op's smoke restriction policies, if applicable. Applicants should also be informed about the protocols, procedures and consequences if the policy is violated, including all fines, penalties or legal costs.
Who Pays the Bill?
As far as who is legally responsible for paying for any work that needs to be done to limit the spread of secondhand smoke? That is still unclear, in terms of the Reinhardt case. They never discovered a clear source of the smoke. But based on the provisions of most proprietary leases, the financial responsibility for the care and maintenance of the “building” is the responsibility of the Cooperative.
Any repairs to the common areas, such as exhaust fans and probably penetrations between apartments would fall to the Cooperative. However, if the Cooperative could demonstrate it has taken all reasonable precautions to prevent the spread of second hand smoke, it is possible that a court would hold the shareholder creating the second hand smoke as responsible for the costs to eliminate its existence.
“The position the Board could take is the shareholder is creating a nuisance by allowing the smoke to be transferred to other apartments. As a result of the Reinhardt decision, we recommend that Boards be more proactive by participating in finding solutions, or more flexible in their approach to address secondhand smoke complaints,” Hirsch said. “Some Boards may even decide to share costs with the affected shareholders. This could either be soft costs related to ultrasonic and micro particle testing by certified engineers, certified lab tests of smoke tubes, and engineering to identify airflow pathways and openings, and/or hard costs related to the actual work performance.
As always, any amendments to governing documents, House Rules or co-op policies should be reviewed by the association’s legal counsel before changes are made.
It’s sometimes tricky to balance the rights and responsibilities of all the homeowners, shareholders and residents in a community. When it comes to secondhand smoke, now that there is legal precedent, it’s more important than ever to make sure that people are behaving responsibly with secondhand smoke so that it doesn’t affect other shareholders’ rights. A professional property management company can provide guidance and expertise in both the physical means of filtering and restricting secondhand smoke, and the policy and compliance side of the issue.