No Ifs, Ands....Or Butts Banning Smoking in Co-ops and Condos

It's not easy to be a smoker in New York City these days. It has become commonplace to see office workers in front of skyscrapers lighting up, or to hear announcements prohibiting smoking in theaters and other public venues. And now, under the New York City Smoke-free Air Act of 2002, smokers at restaurants and bars have to step outside to light up. It's not even legal to smoke in a previously designated "smoking lounge." About the only place left to smoke indoors is at home"¦or is it?

Last year, in a case that garnered quite a bit of attention in the press, one Manhattan co-op passed a resolution forbidding smoking in all newly sold apartments. The New York Times reported that potential buyers at 180 West End Avenue would be required to declare whether or not they smoked, and their application for purchase could be rejected on that basis. According to sources at the National Association of Housing Cooperatives (NAHC) in Washington, D.C., this was likely the first such ruling by a co-op board. But, as more Americans become aware of the potential health hazards of secondhand smoke, there is a nationwide trend materializing to limit smoking in privately owned apartment complexes, co-ops and condominiums according to sources at several organizations that specialize in this area.

Why The Concern?

In 1993, the U.S. Environmental Protection Agency (EPA) released a report classifying Environmental Tobacco Smoke (ETS) - or "secondhand" smoke - as a Group A carcinogen. The EPA assigns this dubious distinction to substances that have shown sufficient evidence of causing cancer in humans. According to information released by the EPA, the Group A designation has been used for only 15 other pollutants - among them such heavy-hitters as asbestos, radon, and benzene. According to a fact sheet published by the American Lung Association, "ETS causes an estimated 3,000 lung cancer deaths and 35,000 to 50,000 heart disease deaths in non-smokers, as well as 150,000 to 300,000 cases of lower respiratory tract infections in children under 18 months of age each year."

How Did It Come To This?

"Over the past five years, and especially during the last two to three years, there has been more focus on apartment and condominium complexes being totally smoke-free," says Jim Bergman, co-director of The Center for Social Gerontology in Ann Arbor Michigan and director of The Smoke Free Environments Law Project.

"The trend stems largely from health issues - especially for people with respiratory illnesses like asthma or emphysema, where secondhand smoke can be life-threatening." Bergman adds that smoking bans in venues such as workplaces and public spaces have put more attention on the issue.

Advocates for rules prohibiting smoking in individual apartments argue that smoke seeps into adjoining units through ventilation systems, heating and cooling systems, cracks in the walls, or even through electrical outlets and plumbing pipes. "It is virtually impossible to stop smoke from coming in to adjoining apartments," says Bergman.

According to EPA literature, ETS is a mixture of more than 4,000 compounds. "Because smoking produces such large amounts of pollutants, natural or mechanical ventilation techniques do not remove them from the air in your home as quickly as they build up."

"Most complaints about secondhand smoke seem to be driven by smell, but smoke can be toxic even below what you can smell," says Bronson Frick, associate director of Americans for Nonsmoker's Rights (ANR). "Unfortunately, ventilation systems can dilute the smoke but do not make it safe. There is no safe level of secondhand smoke." Frick adds that as more Americans work in places with smoke-free policies, that behavior follows them home and they do not want to smell smoke in their residences.

Is It Legal?

According to several sources interviewed, there is no law against banning smoking in individual apartments in a condominium or co-op setting. "Smoking is not a characteristic, it's a behavior," says Frick. "Co-ops and condos regulate other behaviors, such as playing loud music or generating other types of noxious fumes, so it makes sense that they would look to regulate smoking. These types of provisions are not against smokers, but against smoking as a way to harm other people."

Douglas Kleine, executive director of NAHC notes that "smokers are not a protected class" under law and that a no smoking rule in cooperative apartments can often be implemented by amending the house rules which, in many buildings, requires only the vote of the board, not a majority of shareholders.

Bergman says, in condominiums, "the terms of the purchase agreement will depend on the particular rules of the condo association" and all are different in terms of how the smoking policy is presented.

In its literature, ANR cautions, "there are no clear cut legal protections against secondhand smoke for tenants. You are dealing in a "˜gray area' of the law."

An article by Robert I. Kline in the Summer 2000 Tobacco Control Journal lists several regulatory and legal theories that may be used by non-smokers attempting to reduce their exposure to secondhand smoke from neighboring units. These include objections under a "nuisance" clause, breach of the covenant of quiet enjoyment, or the implied warranty of habitability. Kline writes that each of these theories is "premised on the existence of a harm to the non-smoking resident."

Big Brother is Watching

If a building institutes a smoke-free policy in individual units, enforcement may be a bit tricky.

Edward Finkelstein, a Manhattan-based attorney and member of law firm Sexter & Warmflash LLC, says that, "You have to separate the legal from the practical here. People will mostly do what they're going to do - ultimately, I don't know how [boards] would practically enforce a smoking ban."

"You enforce the rule basically the way you enforce traffic laws; they're pretty much self-enforcing," says Bergman. "Occasionally you have someone who runs a red light, but it's usually not intentional." In his experience Bergman says, there is not too much of a problem with enforcement when a ban goes into effect but adds, "It's tough when you have tenants that are grandfathered." In rental situations, a landlord may offer to move smokers to one area of the building or complex, but in a condominium or co-op, "you are probably looking at making the best of a difficult situation," he says.

What About Property Values?

The jury is still out on whether "smoke-free" policies have an effect on property values. Bergman says it is difficult to measure since it is hard to know whether an apartment is or is not selling well because it is smoke free, or if there are other factors at work. According to Kleine, the West End Avenue board consulted with realtors to see if the policy would hurt property values. Kleine says the realtors could not be sure, but said it might actually help to create a unique niche. "You may not mind the smell of smoke, but you may not want your children to be exposed to it."

Other Ways Around the Problem

In lieu of a total smoking ban, there are measures that buildings and individual residents can take to reduce exposure to secondhand smoke. Many buildings have already adopted policies prohibiting smoking in common areas including hallways and laundry rooms. The Americans for Nonsmokers' Rights (www.no-smoke.org) lists several options in their article, "The Smoker Next Door"¦Handling Unwanted Tobacco Smoke in Apartments and Condominiums." Possible solutions include asking a neighbor to agree to smoke near an open window, having the ventilation system checked for filters that need to be cleaned or changed and take measures to ensure the building is up to all state and local building codes. ANR notes that structural defects can cause an excess amount of smoke to travel between apartments.

The Smokefree Apartment House Registry (www.smokefreeapartments. org) suggests adding or modifying fresh-air intake into the ventilation system, encourage residents who smoke to purchase smokeless ashtrays or smoke digesters, and reset molding and caulking and seal all holes and cracks that may allow tobacco smoke to enter a neighbor's home.

Kleine says buildings need to consider how air is circulated in the building. "Most buildings re-circulate air. The same ventilation systems that put cooking smells in the hallways push smoke into the hallways."

Building construction can also play a role in how much smoke travels between apartments. Bergman calls it the "Marriott Method," referring to the ability of hotels to maintain smoke-free floors. He says this can be accomplished because most hotel floors and ceilings are made of concrete, which is less forgiving for the passage of secondhand smoke.

The Future

The ban at 180 West End Avenue prompted a flurry of media attention when it was announced in 2002, and - perhaps because of the ensuing unwanted attention - the board, management, and legal counsel for the building have declined to speak further on the issue, at least publicly. Now, it appears that the board of 180 West End is considering withdrawing the ban because of the very problems voiced by many in this article; it's hard to enforce, and regulating private behavior to such a degree may trigger expensive, time-consuming litigation that outweighs the ban's benefits.

According to Finkelstein, West End's retraction of their ban may signal the death knell for similar measures in other buildings; "It's just a potentially slippery slope to [regulate] private behavior," says Finkelstein. "And ultimately, a [smoking ban] will likely be challenged in the courts."

If this is the case, then the story of 180 West End - that of laying down ambitious rules and having to step back from them - could either inspire or deter other New York City co-ops from following suit. As the detrimental effects of smoking and of second-hand smoke become more than co-op and condo residents are willing to risk, you can bet that the issue of allowing or forbidding shareholders and owners from smoking is just heating up.

Meryl Feiner is a freelance writer and frequent contributor to The Cooperator.

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19 Comments

  • Not only does secondhand smoke smell bad and make one nauseas anything in our apartment that was once white has turned yellow. I have noticed this on pages of books (which have not been in direct sunlight so I know it is not from nature), papers in drawers and the linens in my closet.
  • I live in a coop in Wash. DC. We have many famous residents. We also have a few smokers whose second hand smoke causes big problems with those with allergies. I say Smokers should take some responsibility in their units / share of the corporation.We spend money on trying to insulate the non smoker's unit but require nothing of the smoker? Help!
  • I Have been suffering from the second hand smoke for for years. It is making me sick. I get rashes , stomach pains, itching, headaches and other symptoms.I have tried everything and nothing works to keep the smoke out . It should be a law against people who smoke and make people sick. Help! we need fresh air It's our God given right.
  • As a former property manager for the referenced property it comes as no surprise that the 180 Board turned out to be at the forefront of such a maverik requirement to a purchase agreement. They were long concerned with quality of life issues to stay ahead of the curve despite being inhabhited by babyboomers. I applaud them.
  • I am asthmatic and suffering horribly at the hands of a chain smoking neighbor who smokes incessantly all day and into the wee hours of the morning. My lungs are burning Ike fire and being an apartment owner with less than a year residing here, I am lost. My board members are smokers and not sure how accommodating they will be if I make a formal complaint. I feel like I am in a room with a smoker and I cannot escape.
  • The smoker below me chain smokes strong cigarettes, day and night. My 4 air cleaners can't "keep up" with the influx of smoke from below,causing terrible health issues.The neighbor won't cooperate at all and refuses to accept paid-for aircleaners and supplies. The coop board goes back and forth on how or if they want to handle it.They blame me if I complain or react. It's going on for years and no one will help me. I don't want to move. This has been my home for a very long time. Most of the owners now smoke and the board feels it's a lost cause going smoke free.They don't want to spend the money to redo the building with ventilation system.They fear the smoker who threatens to sue for being "harassed" about his smoking, despite how it enters every part of my apt.He intimidates everyone. So nothing is done and the non-smokers in the bldg, myself ihcluded, suffer.The bldg recently banned smoking in communal areas, so smokers smoke in their apts more than ever;others have started to complain too. The smokers' rights are fully protected, ours are not. I don't understand it , we all live here , all should have rights.
  • There is no question smoking should be banned in all multi-family dwellings (co-ops, condos, apartments) where (unlike bars, trains, parks, offices) people spend most of their time and can't get away from the harmful, cancer-causing chemicals in secondhand smoke. The chronically ill, children and elderly especially, let alone the rest of non-smokers, should not be subjected to this activity which should be illegal. The healthcare costs and lost wages due to illness are enormous to allow this to go on, and the laws need to change now to protect residents' health and safety.
  • all of these whiners have no proof that second hand smoke does any damage, it does stink, however, and i think that is what they object to.
  • i agree that smoking should be banned in multi-family dwellings. i have a wife with lupus and numerous other ailments, also i have a 6 year old boy. the smoke iritates both of there athsma, and sinus problems. the tennant wont comprimise and the landlord keeps making excuses. the smoke comes up through under our kitchen sink and up into my sons bathroom, but the landloard says there is nothing she can do. it bothers me so much that the landlord and the owners of the hundreds of apartments in our area are aware of my wifes ailments and that i have a 6 year old with asthma yet they do nothing and must not care at all! a law needs to be passed to snuff out this disgusting problem!
  • I and my wife came home to our house after a 20 stay in the hospital for my wife. My adult children smoke but since Ive been home they and their friends who come over (sometimes several at a time) sit around smoking in there rooms and in the hallways and butts are scattered out front. I became enraged when I heard someone come into my home about 10:30 pm without knocking and ener one sons room. I followed him into the room and he just pulled out a large loaded mariganna pipe and lite up... well he saw me and said uh-oh and put it lite in his pocket. I lost my cool and ran him out of the house. Then begin to yell at my adult sons about the attitude of friends like that. Can I do anything about having my home declared a non smoking residence. We are 71 and both are non-smokers. My wife has conjestive heart failure and I have been in good health except I have experienced 6 stents in past 10 years.
  • The problem is that you cesdinor yourself as a smoker not a non smoker . Don't know how long you've been addicted but it can be so hard to adjust to a non smoking attitude. I know so many people who have told me that its easy, just stop. Unfortunately some of us DON'T find it that easy. There is always an excuse to put off quitting. Try to look at your mental picture of yourself and see you without ciggies in different situations. Then think of ways you could cope/deal with things without the automatic reach for the packet.It may take a few weeks but give it a try. If you need support look at my profile and email me. I'm struggling too but finding i smoke less as i keep on with the above method. No longer terrified of being without and that is a good start.
  • I recently purchased a co-op in Queens and i am seriously regretting my purchase. The shareholder below me smokes like a chimney. I suffer with asthma and I have lupus. I have been hospitalized with asthma or other respirtory issues in the past. When my husband and i went to view this apartment, we loved it, but were concerned because the apartment was full of oil plug-in air frehsners and candles, etc. and we noticed that the person downstairs smoked. My husband and i are also former smokers. I explained my health issues to the representing sales person (who primarily deals with this co-op) and i even went as far as asking if all of the air freshner was "necessary" or because the current owner liked them. Both the chain smoking shareholder and prior owner of my unit lived in their respective units for approximately 10 years. I need to know.... can i actually get my money back on the sale??? My purchase date was 9/11/12 and i moved in on 10/26/12. I am really concerned and quite miserable. The smell of smoke is all over our unit (even as a smoker, i smoked outside because i did not want the smoke inside my home). PLEASE HELP!!! i AM DESPERATE.
  • I have owned a condo for 13 years in Queens with my wife. We have three young children. Just recently a couple rented the apartment downstairs from us. The wife claims she has asthma but her husband smokes like a crackhead. My wife has talked to his wife and she assured us he doesn't smoke in the apartment. B.S. It smells as if he is smoking in my living room. I own and they rent... I should have more rights than them concerning this... no? I have the health of my children to look out for. And to the genius who said there is no proof second hand smoke is dangerous... tell that to all the children who lost a parent who have been subjected to it... second hand smoke kills... period... and yes my wife and I are ex-smokers.
  • I live in a co-op on long island have a chain smoking neighbor who after numerous complaints still smokes in the middle of the nite and I wake up and gasp the filthy air . I have an electrostatic air cleaner like those used in casinos on a smaller scale and I am thinking of taking the owner to small claims court to pay for my quality of life complaint so I can breathe easier.
  • I have lived in a codo for 12 years above a heavy smoker. Our condos were built in the 70's and the smoker might as well be sitting in my den - it is that strong. I keep my windows open year round and I still had a lump in my breast that had to be biopsied. My cat, however, contracted breast cancer and has had to undergo two major surgeries. I PRAY for the day that non-smokers have more legislation to back them up.
  • The Ban at 15 West 84th street was in Feb 2010. Article makes it seem like it was 2002.
  • My beautiful vibrant neighbor retired from her job and lived with a husband who smoked constantly. Within 2 years this non-smoking woman was dead from respiratory disease, so, Mr. Unknown User, don't tell me that "all of these whiners have no proof that second hand smoke does any damage, it does stink, however, and i think that is what they object to. " Yes it stinks and yes it most certainly kills.
  • How amusing that all of the above comments have been debunked by the recent Stanford University study which claims there is 'no clear link between passive smoking and lung cancer'. Shame on all of you for following political propaganda like a bunch of mindless sheep. The slow erosion of civil liberties within our own homes is inexcusable.
  • Wait a minute, are we saying that their are NO oversight of co op and condo boards by any state run office that owners can go to if they suspect corruption, white collar crime, harassment, etc., the list is endless and the corruption is rampant! So, commit crimes but don't smoke a cigarette on your condo deck that you pay for and are responsible to maintain, nor any of your guests??? Now, I get the smoking issue but this is peoples homes they pay for! Then lets throw in offensive smells from cooking, some people are allergic, how about noise, noise is more detrimental to a persons well being than smoke! Non smokers might feel this is a milestone victory for them but what it is, is your government coming into your homes and now they are in! Whats next?