In Reinhard v. Connaught Tower Corp. & Olick, a state Supreme Court judge recently 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, Justice Arthur Engoron wrote: “This 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. We understand the case is being appealed.
In a 2006 case, a Manhattan judge ruled that secondhand smoke is a breach of the “warranty of habitability,” a provision of state law that also played into Reinhard's case. It says that landlords or building owners (including co-ops) are responsible to maintain “livable, safe and sanitary” apartment conditions.
“This is a trial court decision and does not have the same precedential impact of an appellate court ruling,” says Ben Kirschenbaum, VP & General Counsel, FirstService Residential, “but it does make it clear that a board of directors in any cooperative (and possibly a board of managers in a Condominium) that ignores or gives limited responses to complaints of second-hand smoke is at risk of an extreme decision against it.”
Smoking bans in condo, co-op, and rental buildings, while still relatively rare, are becoming more commonplace. Is this something that your board might want to consider? It is not easy to implement, and you should discuss this with your building’s attorney before starting the process. As always, if you want additional practical advice, please consult with your management team by contacting FirstService Residential.
Tuesday April 19, 2016