A tenant in my co-op building is smoking a lot, which is against the building rules. In a co-op or condo, do renters have to abide by the same rules as owners?

A non-purchasing tenant—that is, someone who's renting from the owner of an individual apartment, often the original developer or "sponsor"—does not have a direct contractual relationship with the building's board. But if the tenant's bad behavior affects residents beyond his apartment walls, the board can get involved, says Steve Wagner, a co-op and condo attorney with the firm Wagner Berkow.

For example,Wagner says, if in a condo building "a non-purchasing tenant is smoking on the ground floor like a chimney, as he has always done, and it’s starting to really stink up the lobby entrance," , "the condo board could create a policy requiring that people don't bring any secondhand smoke into the common areas."

Indeed, as Wagner points out, soon all large residential buildings will have to have smoking policies, and the policies should get into this level of specificity. With such a rule in place, the board should then write to both the tenant and the unit owner, Wagner says. 

Legally, the gripe is between the board and the owner, but there's nothing stopping the tenant's neighbors from politely reaching out as fellow members of the community trying to address a community issue. At the end of the day, the smoking tenant will be allowed to smoke in his apartment to his heart's content.

What he ought not to do is pollute the common areas without trying to take steps to address it.

"You shouldn’t be able to do something that’s dangerous to other people in the building," Wagner says.

And when it comes to smoking, there are a variety of road-tested methods for redirecting the smoke. In this situation, the board could ask the unit owner and tenant to allow an apartment inspection, so that professionals could find and seal off holes. Air filters and creating negative air pressure, to push the smoke in rather than out, are also options.

"There are ways of stopping this," Wagner says. "It’s worth a try."

Contacting the unit owner and the tenant is the board's first, least painful way of starting the conversation. If both the tenant and unit owner refuse to make a change, there may be room to bring legal action against the owner.

"If somebody is creating a dangerous situation and people are complaining about it, there are several causes of action that may be available against the unit owner," Wagner says. "Violating the rules would be one of them, provided the rights of the non-purchasing tenant are not protected by either the rent regulations or the Martin Act," which regulates condo conversions.

In a co-op building, a common type of legal action to give a disruptive unit owner the boot is known as a Pullman case, and this could be used to take the unit back from the owner. Then, subject to the terms of the lease, any applicable rent regulations, and landlord-tenant law, the board would become the landlord and could deal with the tenant accordingly.

Another example where this might come into play is if a co-op tenant is a hoarder who has repeatedly harbored bedbugs, with the unit owner and the tenant failing to take the standard steps to remediate the infestations. The Pullman case against the owner would focus not on the tenant bringing in bedbugs once, but on the tenant doing it repeatedly, and the owner not taking precautions against worsening and repeated bug problems.

Pullman cases are not an option available to condo boards, but there other kinds of legal actions that can be directed at rule-breaking condo owners.

Nor is the tenant necessarily off limits for litigation just because he's not specifically subject to the building's rules.

"The other thing is there is likely room to bring proceedings against a non-purchasing tenant if the conduct is so egregious that it is disturbing other people in the building or creating a dangerous or hazardous condition," Wagner says. "Somebody who’s a non-purchasing tenant doesn’t get a free pass at playing the stereo at top volume at 4 in the morning just because there’s no contractual relationship."

New York City real estate attorney Steven Wagner is a founding partner of Wagner, Berkow, & Brandt, with more than 30 years of experience representing co-ops, condos, as well as individual owners and shareholders. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Steve an email or call 646-780-7272. 


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