Page 5 - New York Cooperator January 2019

QUESTIONS & ANSWERS Legal Q A& What to Do About a Smoking Neighbor? Q I live in a co-op and my neigh- bor downstairs from me is con- stantly smoking. I brought it to the attention of the management and nothing has been done. What are my op- tions as a shareholder? Do I bring legal action against management, or do I take legal action against the shareholder who’s producing all the smoke? —At My Wits’ End A “The City of New York re- cently enacted Local Law 147-2017,” says attorney Margery Weinstein of the New York firm Ganfer Shore Leeds & Zauderer, “which requires all co-ops and condominiums to adopt and disclose written smoking policies stating precisely where smoking is permitted and/or prohibited. This leg- islation requires that the smoking policy be provided to all shareholders, tenants, subtenants and unit-owners by no later than August 28, 2018. Notably, the law does not require that co-ops and condo- miniums prohibit smoking within apart- ments, nor does it require that any par- ticular smoking policy include specific restrictions, other than that any smoking policy that is adopted must conform to current law (under Local Law 141-2017, smoking is currently prohibited in com- mon areas of all multiple dwellings). “The questioner’s initial inquiry should be to confirm his/her co-op’s smoking policy to ascertain whether the downstairs neighbor is allowed to smoke within an apartment and is otherwise abiding by or violating the building’s smoking policy. If the co-op has adopted a ‘no-smoking’ policy within apartments, the downstairs neighbor may still have the right to smoke if he or she is a rent- controlled or rent-stabilized tenant who resided in the downstairs apartment pri- or to the co-op’s adoption of the policy; as such, that neighbor is not required to comply with a newly-adopted smoking policy that differs from the terms of the lease when his or her occupancy began. “In a cooperative apartment build- ing, the proprietary lease is the primary document governing the rights and ob- ligations of shareholders and the coop- erative apartment corporation as to the shareholders’ manner of use of the co- op building and each particular share- holder’s apartment. Most proprietary leases (or the co-op’s ‘house rules’) con- tain a provision that shareholders shall not permit unreasonable odors to escape into the building’s common areas or into other apartments. When a particular shareholder cannot enjoy the use of his or her apartment due to the action or inaction of either other shareholders or the co-op board (in this instance, due to possible secondhand smoke coming into the shareholder’s apartment and the fail- ure of the management to take correc- tive measures), the shareholder may have various possible claims. “The first claim that the shareholder may make is that the secondhand smoke from the downstairs neighbor is a nui- sance that infringes on his or her statuto- ry right to a habitable residence (codified in the warranty of habitability under New York Real Property Law Section 235-b), as such smoke creates a dangerous condi- tion that affects the shareholder’s health and safety. In addition, the shareholder may argue that the right to quiet enjoy- ment, which is a provision commonly found in proprietary leases, has been in- fringed by the unreasonable odor of sec- ondhand smoke coming into his or her apartment. Although the questioner may COOPERATOR.COM THE COOPERATOR — JANUARY 2019 5 continued on page 24 Make sure the heat stays on JEFF FOSTER Sr. Account Executive 914.755.0458 JERRY RAGANO Director of Sales 914.830.0353 BOZ REILLY Sr. Account Executive 914.804.8303 JOE BRADY Sr. Account Executive 845.222.3601 MARK VALENTI Sr. Account Executive 914.760.4009 Sprague’s account executives are dedicated to keeping your buildings warm all winter. They offer local insight and deep industry knowledge, and they’re backed by the strongest heating oil supply chain in New York City. Get reliable supply and competitive rates with Sprague. Sprague delivers no matter the weather We look forward to serving you - Call today! 1.914.381.6600 | www.spragueenergy.com customercareny@spragueenergy.com Our Energy Makes the Difference ®