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?
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.”