Some of the most intense combat occurring in modern times is not that which has taken place on battlefields, such as at Normandy, Pork Chop Hill, or in the la Drang Valley, or currently in the mountains of Afghanistan, but rather in the ongoing conflicts that occur between shareholders, owners, and renters of apartments in multiple dwelling buildings, between themselves and/or with their respective cooperative boards of directors, landlords, or condominium boards of managers, over the infiltration of secondhand cigarette smoke into personal living spaces.
However, like most wars, steps could have been taken to prevent the smoke and noise disputes that have occurred; steps that could have won the war without firing a shot. This article will discuss the current state of the law regarding secondhand smoke infiltration and how condominium and cooperative boards and landlords should attempt to deal with smoking issues in the future.
The law is still being developed respecting secondhand smoke. At present, there are very few reported cases, but given the amount of poor new and renovated construction that occurred over the past decade, it is likely there will be a significant increase of litigation over smoke issues in the near future. It should be noted, however, that the law applied to cooperative corporations and rental landlords differs in some respects from the law applied to condominiums.
There is no clear answer to the question of how much smoke infiltrating into a neighboring apartment will trigger potential liability. It is generally agreed, however, that “proof of a ‘single occurrence’ plainly will not suffice” and that the answer in each case is “necessarily fact sensitive.”
Boards and Landlords Have an Obligation