A few months ago, a handful of New York City rental buildings announced smoking bans, but could the end be near for lighting up in an apartment you own?
Writing in the New York Law Journal, two of the city’s top co-op and condo lawyers draw on a critical mass of secondhand smoke cases, opinion polls, and health and safety data to suggest that a tipping point is knocking at the doors of the city's co-ops and condos.
Co-ops and condos should ban smoking, recommend Richard Siegler and Eva Talel, “especially if secondhand smoke complaints are frequent and remediation efforts have been unsuccessful….Boards should not be deterred by concerns that a ban would constitute unlawful discrimination against smokers. Smoking restrictions do not violate the Fourteenth Amendment, and smokers are not members of a protected class.”
The article--a must-read for smokers, sufferers, and board members--is the most useful summary we’ve seen so far of practical and legal considerations surrounding secondhand smoke in co-ops and condos.
Here are some highlights from the story (downloadable in full here):
- Recent legal developments make it clearer than ever that boards are legally required to address secondhand smoke complaints, such as by hiring a certified industrial hygienist to investigate and recommend remediation measures.
- Usually, remediation requires entering the smoker’s apartment (access is required by law) to seal up walls and ceiling slabs, followed, if necessary, by installation of an exterior exhaust filtration system in the smoker’s apartment. Similar systems installed in the non-smoker’s apartment are helpful but don’t usually solve the problem.
- Smoking bans may actually enhance property values: A poll suggests that 58 percent of NYC residents would pay more to live in a smoke-free building, and 68 percent might choose not to live a building where smoke is permitted.
- Smoke-free buildings may have lower maintenance and insurance costs, partly because cigarette smoking is a leading cause of fires in apartment buildings and the number one cause of fires that result in death.
Talel and Siegler describe four different levels of smoking restrictions that a building could impose:
- A total ban on smoking in the building
- A smoking ban that makes an exception for current smoker-owners
- Defining secondhand smoke as a nuisance in the governing documents, so that lawsuits against smokers (by neighbors or boards) will be easier
- Rejecting prospective co-op buyers who smoke.