Over the past few years a number of our clients have asked about the legal implications of secondhand smoke in their buildings. The law on the issue has been largely unsettled.  However, boards and property managers should be aware of a clearly emerging trend of imposing liability on cooperative and condominium boards that permit smokers to subject their neighbors to secondhand smoke.  This trend is highlighted by a recent decision in the case of Reinhard v. Connaught Tower Corp., a lawsuit brought in the New York State Supreme Court for Manhattan.

The plaintiff in the Reinhard case had purchased a cooperative apartment as a pied-a-terre in 2006 but claimed that she had never been able to use it because cigarette smoke from an adjacent apartment infiltrated it.  When the problem was brought to the cooperative’s attention over a period of years, it largely denied the problem.  When the cooperative attempted remedies, it did so ineffectively while asserting that it had no obligation to solve the problem.  After a trial, the court found that the evidence established that the secondhand smoke was “significant” and “not de minimis”.  Accordingly, it granted a 100%, 8-year maintenance abatement to the plaintiff from June 2007, when she had first complained of the smoke, through the date of the decision.  The amount of the abatement was in excess of $120,000.  The court also ruled that the plaintiff was entitled to reimbursement of her legal fees.

In the Court’s view, smoke-free apartments (de minimis smoke excepted) must be ensured in one of two ways: by banning smoking in the building or by ensuring that smoke cannot escape an apartment.

The primary theory of the decision was a breach of the statutory warranty of habitability applicable to New York landlords.  Because of differing legal structures, this warranty applies in cooperatives but not condominiums.   However, condominiums should not be complaisant.   As the court noted in its decision and in an earlier decision in the same case, there are alternative theories of liability that would apply in a condominium, including breach of contract and negligence.

It is possible that the specific decision in Reinhard may be modified or reversed on appeal, but even if so, the decision reflects the direction in which the law is moving.  Boards risk significant liability if they do not ban or strictly regulate smoking in their buildings either through promulgation of an interpretation of an existing lease, house rule or by-law provision addressing nuisance activities and odors or through adoption of a new lease, house rule or by-law provision specifically addressing smoking.  The best strategy depends on your existing governing documents. A complaint as to secondhand smoke should receive a prompt, effective and aggressive response from the board and management either to compel the smoker to “smoke proof” his or her apartment or not to smoke in the building.

If you have any questions concerning smoking in your building, please contact us.

This memorandum was initially issued by the cooperative/condominium practice group of Balber Pickard Maldonado & Van Der Tuin, PC which joined Smith, Gambrell & Russell, LLP on February 1, 2017 and now practices as part of SGR’s Cooperative/Condominium practice group.