Q&A: Smoking Ban?

Q I have a question about a condo owner’s right to smoke in their apartment. Having secondhand smoke infiltrate our units troubles many of my fellow condo owners—including myself. Our property manager suggests that we approach the offending neighbors and ask them to refrain from smoking inside their condos, or step outside to smoke.

Is such a request even legal? Can you ask a fellow condo owner not to smoke in the privacy of their home? It doesn’t sound right to me—more a sure-fire way to make an enemy out of an otherwise friendly neighbor.

How can our building eliminate the problem of cigarette smoke infiltration—could it be a structural or ventilation problem? Can a building ban smoking in private condo residences?

—Brooklyn Shareholder

A According to David L. Berkey, Esq. of Gallet Dreyer & Berkey, LLP in Manhattan, “A condominium is governed by a board of managers who have the authority to adopt house rules. If the board determines that it is in the best interest of all unit owners to prohibit smoking in apartments, it may consider adopting a house rule that bans such smoking. Although it would be unpopular, the rule would probably be enforceable in the courts against a person who violates the rule by means of a court order containing an injunction prohibiting such smoking. Second hand smoke is a serious problem in some buildings and a documented health hazard as well. While it is true that smoke is difficult to contain within apartments, an effort can be made to seal all of the joints where floors meet walls and ceilings and all penetrations of pipes, conduits, etc.

“Sometimes an appliance that filters the smoke from the air must be purchased to prevent the smoke from passing through the ventilation shafts and into other apartments. If this effort fails and the smoke continues to disturb other unit owners, the smoke may also be treated as a nuisance—prohibited by most condominium bylaws—and be enjoined by court order.”

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