Page 5 - The NY Cooperator September 2019

COOPERATOR.COM THE COOPERATOR — SEPTEMBER 2019 5 Give residents what they really want... More Space. Our Investment. Your return. Offer your residents an exceptional onsite storage amenity! We will turn your unused building space into a secure, state-of-the- art storage facility FOR FREE . We will handle everything from start to finish, and we’ll PAY YOU monthly. WWW.BARGOLD.COM Storage4U@bargold.com (718) 247-7000 QUESTIONS & ANSWERS Legal Q A& Smoking and Shared Terraces Q We need help with this dilemma. Our co-op’s public areas are all non-smoking – but what about the shareholders who share a terrace? Out of 82 terraces, 12 share their terraces with neighbors, some of whom smoke. It is a big problem for the non-smokers. Is there a New York State law that prohibits smoking on shared terraces? If not, is there anything we can do as a board? —Non-Smoking Board Member A “Th e New York City Smoke Free Air Act,” says attorney Dennis Greenstein of the New York fi rm of Seyfarth Shaw, “prohibits smoking (and the use of e-cigarettes, for that matter) in virtually all enclosed areas within public places and in certain outdoor areas of public places. New York State provides simi- lar, though less comprehensive, restrictions on smoking as part of the Clean Indoor Air Act, as amended. “Under Th e New York City Smoke Free Air Act (the ‘Act’), common areas—such as common hallways, lobbies, laundry rooms, elevators, mailrooms, meeting rooms and fi t- ness rooms of a multiple dwelling containing 10 or more dwelling units—are ‘public places.’ It appears that the letter writer’s question in- volves unenclosed outdoor private spaces that do not fall within the Act’s smoking pro- hibition nor any other state or city laws. “Notwithstanding the above, most co-op proprietary leases provide that lessees (the shareholders) and their guests and other persons present in their apartments may not cause or permit a nuisance and/or ob- jectionable odors. Smoke entering another apartment or common area could be a basis for declaring a breach of this requirement of the proprietary lease. Th e co-op board could serve a notice demanding that the sharehold- er causing or permitting the smoke condition cure the breach and advise that failing to do so could result in the board seeking the ter- mination of the proprietary lease (and pos- sible eviction) on the basis of this breach. Moreover, if the lessee has been sent repeated written notices stating that smoke emanating from their unit or other private spaces con- tinues to enter other apartments and com- mon areas, the board may be able to seek the termination of the lease based upon this ob- jectionable conduct. “Th is avenue to address a smoking condi- tion, of course, is dependent on the particu- larly proprietary lease having the assumed language/obligations stated. In the event the proprietary lease does not have these provi- sions, or if a particular co-op wants to ad- dress the issue of smoking more directly, a amend the lease to state that permitting sec- board can consider amending the proprietary ond-hand smoke to enter another apartment under proprietary leases; thus a lessee choos- lease to outright ban smoking in all areas of or common areas of the building constitutes ing to ignore notices to cease does so at signif- the building. Th is course, however, under objectionable conduct under the lease, thus icant peril. As all of these variations suggests, most co-op governing documents generally strengthening an argument that a lessee is en- requires shareholders owning at least two- thirds of the outstanding shares of the corpo- ration to vote in favor of amending the lease. An alternative to an outright ban would be to able conduct obligation, there is no right to gaging in such objectionable conduct by their on private terraces, and a court could go any smoking. “With respect to a breach of the objection- cure such breach, unlike most other defaults the law is not as clear on the issue of smoking continued on page 20