Preventing Offensive Smoke Conditions Reducing Potential Liability of Boards and Landlords

To reduce their potential liability from secondhand smoke-related issues, condominium and cooperative boards and landlords or rental buildings can attempt to adopt rules and bylaws or lease terms that clearly address smoking issues. (Although, changing the terms of a rent stabilized lease, even at renewal time, is virtually always prohibited.)

Enforcing the Rules

However, knowing the difficulty of this task, some unorthodox means can be attempted to achieve the same goals. As cooperatives can reject an application for any reason that does not violate anti-discrimination laws, clients in our firm have been adding an agreement to the application whereby the prospective tenant-shareholder signs that he/she agrees to not smoke in the apartment or interfere with another resident’s privacy. These signed contracts can be used to enforce the building’s “no smoking” rules. Many landlords have been using the newest Blumberg lease forms that prohibit smoking entirely within the apartment or that permit the tenant to be evicted for interfering “with the health, comfort, or safety of other occupants of the building.”

Condominiums have less leverage to ban or regulate smoking, but many have been adding these no smoking agreements to their entrance applications. Unfortunately, in the event that a prospective owner refuses to sign the “no smoking” agreement, the condominium can only exercise its right of first refusal to purchase the selling unit owner’s apartment or delay the waiver of its right of first refusal until the closing. However, as most condominiums are in no position to exercise their right of first refusal, a new purchaser who refuses to sign an anti-smoking agreement is likely to prevail if the condominium refuses to waive the right of first refusal.

Other peaceful, but less effective, means that boards and landlords may employ to ban or regulate smoking include (1) displaying “public notices” on building bulletin boards and/or in letters circulated to all apartment residents stating clearly where in the building smoking is permitted and where it is not permitted and what residents may do to alleviate the effects of smoking upon their neighbors; (2) giving periodic written notice to all residents of the building’s policies, rules, and bylaws regarding the building smoking policy; and (3) upon receiving notice of violation of building smoking policies, sending letters directly to the offending resident restating the rules and demanding compliance.

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