The Modern Way to Handle Marijuana Smoke Are Changing Attitudes on Pot Affecting House Rules?

Earlier this month, as reported by Barbara Ross in the Daily News, a condominium board at 400 Central Park West on Manhattan's Upper West Side saw fit to file suit against residents Josefina and Charles Berman, alleging that the woman and her son were "smoking too much marijuana and making too much noise," to the extent where both irritants were permeating the apartments of their neighbors. The story goes on to mention that the Bermans have been fined by the board an astonishing 20 times for smoking the drug, and that they owe $12,084 in back common charges and an additional $10,000 in legal fees.

Regardless of the nuances and specifics of this particular case, it seems fairly safe to declare this a situation that started veering off the rails sometime ago. Wherein a board, with its back to the proverbial wall, was forced to take drastic action against shareholders and unit owners who have been fragrantly violating rules to which they had tacitly agreed, not to mention betraying the kindness of their neighbors. Obviously, legislation is a worst-case scenario in communal living, and associations are often loath to let things get that far. So what can a board do to handle residents partaking of marijuana in their units without resorting to scorching the earth?

Letter of the Law

"A board should deal with pot the same way that it deals with other smoking issues in the property, and that's under the objectionable odors clause in the proprietary lease, which basically says that a shareholder cannot permit unreasonable cooking or other odors to escape into the building," says David Amster, president of Prime Locations, a management firm in Yonkers. "There's not much that we can do when we get complaints outside of sending letters out. If the person in question continues—and we require a written complaint from someone, unless a super or manager smells something in the hallway—then we address the issue with that shareholder and try to get them to keep whatever they're doing within their apartment."

Much of the stigma surrounding smoking in general is associated with secondhand inhalation and risk of cancer, and thus pot—which is simultaneously medically prescribed and legal in New York State for treatment of certain conditions, and classified by the federal government as a controlled substance—often takes a backseat to cigarettes as the focal point of regulation. And some places regulate smoking more strictly than others. In Suffolk County, Long Island, for example, they've gone so far as to prohibit smoking in common areas, which according to Charles Incandela, executive director of management and client services at Alexander Wolf & Company in Plainview, are defined as "any enclosed or unenclosed area of a multiple-unit dwelling that residents or one-or-more unit owner are entitled to use." And while this may be fairly common, Suffolk County takes it a step further, specifying "halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, decks, parking garages, parking lots, barbecue areas and grassy areas within 50 feet of a building." Such a detailed list doesn't leave room to light up anywhere outside of a resident's own apartment, at which point odor restrictions come into play.

Citizens on Patrol

When a board or manager suspects that an owner may be using an illegal drug such as marijuana, Alex Kuffel, president of Manhattan-based Pride Property Management, advises they exercise caution: "Only the police are qualified to investigate and prosecute [the private use of marijuana]. We never speculate or accuse unless we have absolute, valid and legal confirmation, such as proof-positive documentation via police report stating that marijuana was detected inside or at a particular apartment. We always request that the complaining resident state his or her complaint in writing with the dates and times of the offensive odor problem, and it's always a good idea that a building's superintendent or a building employee also witnesses the infraction as it's happening."

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3 Comments

  • Or, the building can fix its ventilation problems. Whenever odors travel from one apartment to another, the ventilation system is not functioning correctly (because of poor maintenance, building dynamics, or basic design flaws), and may even be in violation of mechanical code. If the building has the classically terrible* exhaust only design, then the system is unbalanced and may need recommissioning and/or retrofit. * I say it's terrible because it relies on "adventitious" sources of air - accidental gaps in the building envelope and interior walls - and that means that there's no control over the source of air. The air *might* come from outside, but it might also come through a leaky electrical box in the wall that you share with your pot smoking neighbor. Side note: Electronic marijuana/tobacco smoke detectors are very close to market. They're intended for installation in hotel wall outlets, as hotels face large cleaning costs if a guest smokes... but they'll easily work for apartment buildings.
  • I wanted to add some additional information to the article above that might interest readers: 1. A Manhattan Supreme Court judge recently awarded a co-op apartment owner, Susan Reinhard, living in the Connaught Tower on East 54th Street at Second Avenue more than $120,000 in maintenance and fees after she sued over damage to her place from people smoking in neighboring apartments. Guess who winds up paying for the settlement? The other shareholders in the building. To improve the quality of life, health and safety in your co-op and to avoid similar legal liabilities, the board of directors should consider amending their proprietary lease and by-laws to become a smokefree building. 2. Medical marijuana in New York State is only legal if prescribed in liquid or solid (food) form. Governor Cuomo specifically stated he would not sign a medical marijuana law that permitted smoking as an optional mode. 3. New York City's Smokefree Air Act prohibits smoking in a common area of a residential building containing 10 or more units so the only place that someone can legally smoke in an apartment building in NYC (with 10 or more units) is in the residential unit (and an increasing number of rental, co-ops and condominiums are choosing to be come a smokefree building). 4. In apartment buildings, secondhand tobacco smoke travels from one apartment to another and into common areas through gaps in walls, floors, mechanical chases and under apartment doors - in some cases tests show up to 65% of air was shared between units. 5. There is no air purifier or air filtration system on the market that will remove the minute toxic smoke particulate matter. You will not find any air filter, ventilator or purifier company advertise that their product will remove secondhand smoke toxins. If they do they are subject to a lawsuit. But don't take my word on that, rather here is a public statement by the leading authority on the industry: "The American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) has determined that there is currently no air filtration or other ventilation technology that can completely eliminate all the carcinogenic components in secondhand smoke and the health risks caused by secondhand smoke exposure, and recommends that indoor environments be smoke-free in their entirety." 6. If you would like information on how your building can become a smokefree residence contact NYC SmokeFree at Public Health Solutions at http://www.nycsmokefree.org/borough-partnerships.
  • I wanted to emphasize Phil Konigsberg's 2nd point that smoking marijuana remains illegal in New York state, even for medicinal purposes. This article implies in the 4th paragraph, 1st sentence, and also in the final paragraph that smoking marijuana for medicinal purposes is legal. The article should be revised to clarify that point. See question 6 at: https://www.health.ny.gov/regulations/medical_marijuana/faq.htm which notes "Under the law, smoking is not permitted."