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. “The New York City Smoke Free Air Act,” says attorney Dennis Greenstein of the New York firm 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 similar, though less comprehensive, restrictions on smoking as part of the Clean Indoor Air Act, as amended.
“Under The New York City Smoke Free Air Act (the ‘Act’), common areas—such as common hallways, lobbies, laundry rooms, elevators, mailrooms, meeting rooms and fitness rooms of a multiple dwelling containing 10 or more dwelling units—are ‘public places.’ It appears that the letter writer’s question involves unenclosed outdoor private spaces that do not fall within the Act’s smoking prohibition 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 objectionable odors. Smoke entering another apartment or common area could be a basis for declaring a breach of this requirement of the proprietary lease. The co-op board could serve a notice demanding that the shareholder causing or permitting the smoke condition cure the breach and advise that failing to do so could result in the board seeking the termination of the proprietary lease (and possible 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 continues to enter other apartments and common areas, the board may be able to seek the termination of the lease based upon this objectionable conduct.
“This avenue to address a smoking condition, of course, is dependent on the particularly proprietary lease having the assumed language/obligations stated. In the event the proprietary lease does not have these provisions, or if a particular co-op wants to address the issue of smoking more directly, a board can consider amending the proprietary lease to outright ban smoking in all areas of the building. This course, however, under most co-op governing documents generally requires shareholders owning at least two-thirds of the outstanding shares of the corporation to vote in favor of amending the lease. An alternative to an outright ban would be to amend the lease to state that permitting second-hand smoke to enter another apartment or common areas of the building constitutes objectionable conduct under the lease, thus strengthening an argument that a lessee is engaging in such objectionable conduct by their smoking.
“With respect to a breach of the objectionable conduct obligation, there is no right to cure such breach, unlike most other defaults under proprietary leases; thus a lessee choosing to ignore notices to cease does so at significant peril. As all of these variations suggests, the law is not as clear on the issue of smoking on private terraces, and a court could go any one of multiple ways on a litigation premised upon such conduct.
“Notwithstanding this lack of certainty, however, there are actions, rights and remedies available for a co-op and board to consider and pursue. As a general matter, the board should carefully consider the costs and benefits associated with each approach and seek the opinion of counsel to affirmatively address the situation. As an initial step, conducting a survey of shareholders to determine whether sufficient support exists for implementing a broader smoking ban will provide some guidance to the board. Ignoring the problem or demanding that the shareholders resolve the matter amongst themselves might only expose the board and the cooperative’s shareholders to greater liability. It is also important for a board to act promptly in responding to second-hand smoke complaints. Some may be resolved by locating exit points in the smoker’s apartments and closing them.
“A complaining shareholder may be successful in obtaining an abatement of his or her maintenance charges if there is a finding by the court against the co-op that all or portions of the apartment are not habitable due to second-hand smoke.”