Q: I bought a condo as an investment, and a prospective tenant is great on paper, except that he's a regular smoker, and will likely smoke in the apartment. It's not a non-smoking building, but is this a bad idea? Could it damage my apartment, cause problem with the neighbors, or raise any other issues I haven't thought of?
If you rent your apartment to a smoker, you should be prepared for extra cleaning expenses down the line, as well as possible conflict with your neighbors and condo board and a more difficult time renting it out again once they leave, say our experts.
"Investors want to limit negative returns, which a smoker may bring to the table as a sub-tenant," says Thomas Usztoke, vice president of Douglas Elliman Property Management. "Any neighbor can raise the issue that the neighboring smoking is impacting their warranty of habitability in their apartment [in other words, their right to safe and enjoyable use of their home]."
As the owner of the unit with the smoking sub-tenant, you could wind up in a legal battle with the building's board, which is obligated to protect the health and safety of other residents. "New York courts have held that condominium boards cannot turn a blind eye to odor nuisances and health concerns related to secondhand smoke," says Jeff Reich, an attorney with Schwartz Sladkus Reich Greenberg Atlas LLP. While you could, in theory, stipulate that the tenant must smoke on the balcony or out a window, this is difficult to enforce, and as Reich points out, can potentially create more problems if the neighbors like to keep their windows open, or the tenant is smoking near a ventilation or air-conditioning shaft.
And, as Usztoke puts it, "if you don't have a neighbor issue, you'll still have an apartment with a known carcinogen, which will coat just about anything it comes in contact with and build up overtime to a visible degree of residue on walls, floors, etc." All of which could mean you'll be facing extra cleaning bills to try to scrub the place of the lingering smell and discoloration once it comes time to sell or find a new tenant.
"Smokers are not covered by anti-discrimination laws, and I would advise keeping the unit non-smoking, and advertising it as such," says Sotheby's International Realty broker Gordon Roberts. "If an incredible applicant wants to re-negotiate the smoke-free requirement, you could possibly demand additional security, and charge for end-of-lease cleaning, painting, and carpet/blinds replacement as appropriate."
Still, cleaning doesn't always completely rid a home of residual odors, and if you eventually want to sell or find a new tenant, you'll likely have to show the apartment while the smoker is still in residence, which could be a turnoff for potential takers. "Smoking stinks, and it's an automatic negative when showing a property for sale or rent," Roberts adds.
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