Is Your Co-Op Liable for Secondhand Smoke? NYC Co Op Smoking Policy
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
Fallout from the Decision
What Can Be Done About Secondhand Smoke?
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?
“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.