In recent years, municipalities have banned cigarette smoking in government offices and places of public accommodation. Many private entities also prohibit cigarette smoking in office buildings, factories and warehouses.
Even facilities that originally established designated smoking areas have been gradually doing away with them. While cigarette smoking has long been considered dangerous to the user, the relatively recent prohibitions against smoking are largely designed to protect non-smokers from the ill effects of second-hand smoke.
Not surprisingly, this increased awareness of the dangers of second-hand smoke has begun to affect the community association arena as well. Most condominiums, co-ops and homeowners associations on Long Island are built either as townhouses (side by side) or apartments (upper and lower units). The units are never built air-tight. Cigarette smoke and odors can often pass into neighboring units due to breaches in the walls, ceilings and floors and due to shared attics, hallways and ventilation systems.
While people’s sensitivities vary, most non-smokers find the infiltration of cigarette smoke into their homes to be offensive, at best, and intolerable, at worst. The problems are compounded when the smoker’s neighbors already have pulmonary health problems. And while the complaints and disputes are between neighbors, the Board of Directors (co-ops and homeowners associations) or Board of Managers (condominiums) will almost always be drawn into the conflict.
Virtually every community has a set of House Rules that safeguard residents from objectionable odors or other nuisances and from interference with the enjoyment of their units.
It is the Board’s duty to enforce these rules. However, the language is always general and the rules almost never contain an express prohibition against smoking. So what is a Board to do when presented with a complaint from one homeowner whose living quarters are filling up with second-hand smoke from a neighbor?
There are several possible remedies that are not too painful. One is to determine how the smoke may be traveling from one unit to the other, and attempting to seal these paths – ideally in both units. A building engineer or architect may be useful in identifying these sources of infiltration as well as suggesting methods and materials to close them up. Another avenue is to install enhanced air filtration and/or circulation systems in both units that may remove offending particles or direct them out of the unit instead of next door or upstairs.
Another avenue for resolution is to have the smoker and complainer adopt habits that may minimize smoke infiltration.
Maybe the smoker can smoke in an area far from the party wall or outside the unit. Maybe the complainer can use the air conditioner more often. While these suggestions, and the others set forth above, require the cooperation of both the smoker(s) and the complainer(s), a negotiated settlement is almost always better than the alternative. Your managing agent and community attorney may be able to assist in bringing the parties together and in reaching a compromise agreement that may involve some or all of these components.
But what if these suggestions do not solve the problem, or worse yet, what if the parties cannot agree on a solution?
The smoker insists on his right to do as he/she wishes in his/her unit and the complaining neighbor simply cannot tolerate the cigarette smoke which permeates his/her home.
One option is for the Board to pass a House Rule prohibiting smoking in the building(s). If challenged, however, a court could find that a House Rule is insufficient authority for such a prohibition. Another option would be for the Board to schedule a vote of the community, seeking to prohibit cigarette (and presumably cigar, e-cigarette and marijuana) smoking in the units and common areas through a By-Law amendment. Such a vote can be polarizing. The smokers in the community will vehemently oppose the measure. Non-smoking unit owners may support the proposal with much the same vigor. A super majority of 66 2/3 % or greater is usually needed to pass a proposed By-Law amendment. That threshold is difficult to obtain in the best of circumstances. In a potentially contested vote such as a smoking ban, the required support by a super majority of unit owners may be unobtainable.
Garnering overwhelming support for a smoking ban amendment may also be a challenge even if most residents in the community are non-smokers.
People usually get involved in a cause when it affects them directly. Most smoke infiltration disputes are between one resident (the smoker) and, at most, one or two other neighboring residents who are affected by the smoke. The controversy does not directly affect the other 99% of the community. It may not be a priority for unit owners not involved in the dispute to attend and vote at a special meeting or even to fill out a proxy.
If a smoke infiltration conflict cannot be resolved among the parties or by a By-Law amendment, is that the end of the issue? Do the smokers “win”? Do the complaining neighbors need to live with the fumes, buy tons of air freshener, or sell their unit? Maybe not. A recent Court decision appears to provide a glimmer of hope for the fresh air advocates.
In 201 W. 89th Owners, Inc. v. Mostel, the Board of Directors of a cooperative apartment corporation commenced a holdover proceeding in New York City Civil Court in Manhattan, seeking to evict shareholder Barbara Mostel on the grounds that she had substantially violated the terms of the proprietary lease for her co-op apartment. The co-op’s House Rules prohibited unreasonable odors or anything which could interfere with the rights, comfort and convenience of other shareholders. The Board claimed that Mostel had violated the co-op’s House Rules by allowing cigarette smoke to escape from her apartment and permeate into the public hallway on the second floor of the building, even though the House Rules did not specifically mention smoke or smoking.
The co-op called the superintendent, property manager and two tenants who lived on the same floor as Mostel to testify on its behalf. The superintendent, Felix Romero, testified to having smelled cigarette odor in the public corridor at various times between early 2012 and March 2014. Although he received a complaint regarding the cigarette odor from Sandra Smith, a resident who lived in apartment 2A, no other residents in the building complained to Mr. Romero about the odor.
The co-op’s property manager, Alfred Nicasio, testified to having visited the subject property after receiving a complaint from Sandra Smith in 2011. Following this visit, Mr. Nicasio sent Ms. Mostel two letters in 2012 regarding the cigarette odor in the subject premises and in the public hallway. Mr. Nicasio also testified that Ms. Smith was the only resident to complain about the cigarette odor.
Sandra Smith testified that she contacted management and complained about the cigarette odor in the hallway since she had detected the odor beginning in 2008 and smelled the cigarette odor through 2013. She further testified that she did not smoke and did not like the smell of smoke. Ms. Smith stated that in 2013, Ms. Mostel informed her that she was trying to mitigate the cigarette odor by smoking electronic cigarettes.
Sandra Smith’s husband, Jeffrey Smith, also testified to having smelled cigarette odor in the public hallway from 2008-2012. He stated that he had difficulty remembering how often he would smell the odor since the odor was sometimes less present than at other times. For the period from 2013 through 2014, Mr. Smith was unable to testify with any certainty how many times he smelled cigarette odor in the public corridor.
Barbara Mostel called Annette Kahn, a former Board member, and Emily Goodman, a childhood friend, to testify on her behalf. Both witnesses stated that they did not detect cigarette odor in the public hallway. Another defense witness stated that she visited the subject premises twice in 2013 and did not smell cigarette odor in the hallway on either occasion. Ms. Mostel testified that she was unaware that the co-op had rules prohibiting unreasonable odors from emanating into the common areas, but still attempted to remedy the situation by purchasing new furniture and cleaning the apartment regularly.
The Court held that the Board failed to prove that Ms. Mostel had violated the Proprietary Lease and House Rules.
The Board did not submit evidence that the rights of other tenants in the building would be affected by the cigarette odor. The Court noted that the Board did not present expert testimony to prove that the air in the hallway contained cigarette smoke nor did it present any evidence that the odor posed any danger to other residents. The Board did not present any evidence from experts or machines to determine the strength of the cigarette odor.
The Court noted that although the building’s ventilation system is designed to direct the air upwards and out of the building, the only complaint management ever received was from Ms. Smith. The fact that the subject premises is located on the second floor of the building is significant. While almost all residents in the building could have potentially been affected by the smoke through the ventilation system, none of them complained other than Ms. Smith.
The Court found that Ms. Smith’s testimony was insufficient to prove that Ms. Mostel had violated the Proprietary Lease and House Rules due to the subjective nature of her testimony. With respect to Mr. Smith’s testimony, the Court pointed to his inability to state with any kind of certainty when and how often he smelled cigarette odor in the public hallway.
Although the Court did not find in favor of the Board, this case still suggests the possibility of enforcing House Rules against smoke infiltration. As the Court indicates, whether a Board will be successful depends on the evidence submitted. Subjective witness testimony alone will not be enough for a court to find that a resident is allowing smoke to escape from their unit into the common areas or a neighboring unit.
Sensitivity to cigarette odor is something that varies greatly from one person to another.
This case illustrates the range of sensitivities witnesses can have with respect to detecting cigarette odor. While Ms. Smith testified to smelling a strong odor in the hallway for extended periods of time, her husband was unable to testify with any certainty how often he detected cigarette odor in the hallway and the three witnesses who testified on behalf of Ms. Mostel stated that they did not detect any cigarette odor in the public corridor.
Due to the varying sensitivities of witnesses, this case suggests that courts will be looking for a more objective measure to determine an odor’s strength. Complaining unit owners or Boards may consider hiring expert witnesses who are able to testify as to the particle content of the air or whether the odors are dangerous or hazardous to other residents. Devices which are able to determine the strength or content of an odor may also be useful in providing objective evidence for a court to consider. Provided a Board is able to submit sufficient evidence to the court, the possibility exists that the House Rules may be enforced against smoking.
While a co-op Board of Directors can usually evict a shareholder for violating the House Rules, condominium and homeowners association boards have less extreme options. Nevertheless, condominium and HOA boards may be able to obtain a Court order directing a unit owner or resident to take steps to prevent smoke infiltration or even to stop smoking in the apartment if the evidence presented regarding the extent of smoke infiltration is properly documented and sufficiently compelling.
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[i] 201 W. 89th Owners, Inc. v. Mostel, 46 Misc.3d 1201 (Civil Court, New York County – 2014).
