I have been a shareholder in a co-op building for 40 years and I smoke (only in my apartment). My building is about to go smoke-free under the new law. What rights do I have to continue to smoke in my own apartment?
The new smoking law, which goes into effect on August 31st, 2018, requires that all multifamily residential buildings simply establish a smoking policy, not necessarily ban it outright. Whether you can continue smoking in your own apartment depends on the policy your co-op decides to institutes, according to our experts.
Currently, under the city's Smoke-Free Air Act, smoking is not permitted in the common areas of buildings with 10 apartments or more, and building owners already may opt to forbid smoking throughout an entire building.
"Buildings can and often do go smoke-free," says Steven Wagner, a co-op and condo attorney with the firm Wagner Berkow & Brandt (and a Brick Underground sponsor). "If your co-op made that decision and did not grandfather existing smokers, you would be bound by the new smoke-free policy."
However, he adds, the language of your co-op's proprietary lease and by-laws may complicate matters.
"To be enforceable, the smoke-free policy must be contained in the proprietary lease," Wagner says. "Unless there is language which already restricts or allows the board to restrict smoking, the proprietary lease will have to be amended."
And amending the proprietary lease often requires a super-majority of all shareholders to vote in favor of doing so. Furthermore, your board may want to strengthen the new smoke-free policy by including it in the co-op's by-laws, which may also require a super-majority vote.
Living with noise—or bothersome and potentially toxic odors—can be physically and mentally debilitating. “If a nuisance becomes unbearable, you may need to take legal steps,” says New York City real estate lawyer Steven Wagner. “An attorney who knows what they are doing can find the leverage points of your situation. Sometimes, all it takes to find a solution is a letter from your lawyer.” To schedule a free 15 minute telephone consultation with Steven Wagner of Wagner Berkow & Brandt, click here or call 646-780-7272.
So check the proprietary lease and by-laws to see if you have any wiggle room to continue smoking in your apartment despite the new building policy. But keep in mind that if your co-op board has done its due diligence, you may be out of luck.
"Smokers are not a protected class, so discrimination laws do not apply and New York courts have recognized the health risks inherent in secondhand smoke," says Jeffrey Reich, a partner at the law firm Schwartz Sladkus Reich Greenberg Atlas LLP. "As such, if the letter writer’s cooperative properly institutes a smoking ban, the writer will have no right to continue to smoke in his or her apartment."
If this is the case, you'll have to find another place to smoke, although City Councilman Peter Koo recently proposed a bill to ban smoking and walking on city streets. Might we respectfully suggest you consider quitting? The city offers some resources here.
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