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.”