Smoking bans gain traction among NYC condominium, co-op boards

New York City condominium and co-op boards are increasingly considering banning smoking in their buildings, two condo law attorneys wrote for Habitat Magazine, thanks largely to shifting perceptions of doing so. In the past, boards feared smoking bans would restrict the potential pool of buyers into a residential complex. But as the national ratio of smokers falls below 20 percent and the awareness of the dangers of second-hand smoke rises, the bans could actually attract more buyers than they repel.

Last week, the Real Estate Board of New York even proposed guidelines for implementing such a policy. Habitat noted that if smoking’s popularity continues to dwindle and more buildings legislate smoking bans, refusing to do so could eventually become seen as an endorsement of the habit, and remaining smokers could overtake the property.

According to the attorneys writing for Habitat, there is a clear path for a board to take en route to a smoking ban that ensures success. Boards should push for a supermajority vote to change the co-op proprietary lease or condo governing documents to secure the ban. Simply enforcing a ban under the “nuisance” provision, leaves it vulnerable to court challenges. On the other hand, courts tend to respect building bylaws set by homeowners.

The attorneys also recommend boards include a  grandfather provision in the law, rather than applying it immediately, to make residents more amenable to passing it. Finally, they say boards should leave include language that possibly leaves themselves out of enforcement of the law so that owners can be left to sort out disagreements on their own. However, as The Real Deal reported in the April issue, those disagreements are increasingly culminating in lawsuits. [Habitat]