A Burning Issue Smoking Bans in Private Apartments?

The late 1990s saw a surge of nationwide smoking restrictions put into effect. State by state, legislation banning smoking in various settings was proposed and passed into law. With varying amounts of resistance and controversy, workplaces, shops, theaters, restaurants and bars in a growing number of cities—including New York City—all went smoke-free.

More recently, as the tide of public and medical opinion has turned more decisively against smoking, administrators in some co-op and condo buildings have attempted to ban smoking not just in common areas, but in private apartments as well. Unlike previous bans, no government intervention is being sought to help make these residential buildings smoke-free. Boards are weighing the legal, moral and economic repercussions of such a decision and sometimes choosing to self-enact smoking bans.

While few would debate the health benefits of an entirely smoke-free building, questions abound whenever a board attempts to regulate residents’ behavior to such a degree. Is it morally right to impose restrictions on neighbors’ private residences? How will such decisions impact the building community’s cohesiveness? How will placing such restrictions on private units affect their resale value? And perhaps most important, is banning smoking in private apartments even legal?

Is It Legal?

Most boards and associations aren’t entirely clear what their rights and limitations are when it comes to restricting smoking within their building. Confusion often arises because while most state statutes give boards virtually free rein to regulate their own common areas, they have far less latitude to infringe upon or place restrictions on private units.

“There are some cases dealing with low income housing where Housing and Urban Development (HUD) has strongly urged the public housing authorities to implement a smoking ban,” says Eva Talel, an attorney with the Manhattan-based law firm of Stroock & Stroock & Lavan. “And there are a lot of residential rental landlords in New York who have started to ban smoking in their buildings— and these are some of the big developers like Related, Kenbar, Pan Am, as well as other smaller developers. I think that if a [co-op or condo] building wanted to implement a smoking ban, it could do so, but we would suggest that things be done in a way that would make them more likely to be upheld in court. For instance, we would prefer to see such a ban adopted by shareholder action rather than just by board action. Having an overriding majority of the occupants vote to take this step as opposed to just a board of seven, nine, eleven, or whatever the case may be would give the court a much greater comfort level.”


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  • Linda Leatherfield on Tuesday, July 06, 2010 10:01 AM
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  • The big question is: How is a smoking ban enforced?
  • FedUpBreathingNeighborsSHS on Saturday, July 31, 2010 11:47 PM
    Ok, let me get this straight, Kevin M. Just because you're addicted to an unhealthy product, if you're my next door condo neighbor, I should 1) Put up with the stench of your secondhand smoke seeping into my home, 2) Put up with the potential risk factors to my family's health while we're in _our_ home, due to the results of _your_ addictive behavior , and 3) Put up with the demonstrable negative impact to the marketability of _my_ condo unit because of _your_ smoking addiction. I don't think so. Go blow smoke somewhere else, Kevin M.
  • Kevin M. is clearly in denial.
  • No one should be telling us what we can do behind closed doors. I am a non-smoker but have company that sometimes do smoke .... what you want me to tell them to go up the block?? In NYC they pay high taxes which should include the right to smoke if they choose to - give me a break that it goes into your co-op ... cmon who we kidding?? so next what will it be ?? can I sue the previous owner who was a smoker cause I feel he left his second-hand smoke behind?? as a non-smoker I am totally against this...totally - what I do behind mu door is my business - how far do you think the smoke travels before it dissipates - I mean really - next you won't let me cook with curry or garlic or make fish cause you don't like the smell of that either - get over yourselves is all I can say - get over yourselves and pick something else to holler about!
  • mnotforit: You're babbling incoherently. 1) How much you pay in taxes is irrelevant; you do not have a "right" to smoke. That has been definitively decided by the courts. 2) Of course it goes into your neighbor's apartment; if you think smoke doesn't spread enough to be dangerous, then you're simply wrong. You need to learn about the physics of gasses, and look at the medical data which show that it is, in fact, a health hazard to the people around you. This is not up for debate; it's a medical fact, well-established. 3) "Cooking with curry and fish" is irrelevant, because the smell is not the central issue here; curry and fish are not carcinogens which kill people, as well as exacerbating their existing health issues such as asthma. 4) What you "do behind your door" is not automatically only your business. You can't blast loud music constantly that bothers other people; you can't light fires; you can't set off stink bombs; you can't do a whole host of things which constitute the legal idea of a "nuisance." And poisoning your neighbors, and their children, seems like a bit of a nuisance to me. You want to harm yourself? I feel sorry for you, but go ahead. You want to harm me in the process? No.