Two of our favorite real estate lawyers, Jeffrey Reich and Steven Sladkus of Wolf Haldenstein Adler Freeman & Herz, have posted a video primer (above) about dealing with secondhand smoke in co-ops and condos. It ends with a reminder that a building-wide ban on smoking is perfectly legal.
But even in the Bloomberg era of restrictions on public smoking, co-op and condos have been conspicuously passive about banning smoking inside apartments.
Although Lincoln Towers--the sprawling Upper West Side co-op complex--made headlines when it outlawed smoking among new residents back in 2002, the board repealed the rule when owners revolted over property value concerns and disability rights.
Sladkus says he has done substantial research that shows such smoking bans do not violate disability laws. Reich says there are four main reasons why co-ops and condos stlll hesitate to go smoke-free, even when they are plagued by secondhand smoke complaints:
1. Property values (the biggest)
2. Enforcement worries
3. Reluctance to interfere with perceived privacy rights
4. Concern over a political backlash
Politics may be last, but it's not least.
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“A lot of boards are wary about upsetting the apple cart with current smokers,” says real estate lawyer Aaron Shmulewitz, who has worked with an Upper East Side co-op that attempted a ban without grandfathering in current residents. Though two-thirds of voters backed the rule, the co-op failed to rack up enough votes (two-thirds of all outstanding shares in that case) to change its proprietary lease.
As far as property values, some boards fear narrowing the pool of potential buyers not just by eliminating smokers, but by coming across as scary mavericks.
“You’re doing something that’s not normative in the market,” says Roberta Axelrod, who sits on 10 New York City-area co-op and condo boards as a sponsor’s representative for Time Equities. “If this board is willing to regulate smoking, what might they regulate next? It’s a potential wild card situation.”
Axelrod describes the typical fate of would-be smoking bans: “Most boards at first blush think this is a good idea, but then they start talking about it and realize they may have to spend money on a lawsuit challenge and wonder how they’re going to enforce it, and they usually walk away.”