New York Times — November 1, 1998
Q. & A.; 2d-Hand Smoke in A Co-op
Q. I own an upper-level apartment in a co-op. The people who rent the unit below are nonsmokers; however, their family and friends are all smokers. The odor of cigarette smoke is constant in my apartment when they have visitors. What at first was a nuisance is now a health risk, as I have allergies and the smoke is affecting my breathing. What is the co-op boards responsibility as far as my rights and quality of life are concerned? If nothing is done, what can I do legally?. . . Kathy Harris, Bellerose, Queens.
A. Mitchell A. Dix, a Manhattan lawyer who specializes in co-ops and condominiums, said that most proprietary leases contain provisions intended to insure the “peaceful and quiet enjoyment” of each shareholders apartment. “Accordingly, the board should determine whether the smoking complained of constitutes a violation of the terms of the proprietary lease,” Mr. Dix said. “That means that given all the relevant facts, the board has to decide whether the conduct complained of actually interferes with another shareholders rights.”
To do that, he said, the board would have to determine whether an annoyance of the sort described by the letter-writer can be objectively established.
“Since the rights conveyed under a proprietary lease extend to all shareholders in the co-op,” Mr. Dix said, “boards must also recognize the right of a shareholder to allow smoking in the privacy of his own home.”
Accordingly, Mr. Dix said, when confronted with a subjective complaint like the one referred to by the letter-writer, most boards generally decline to take legal action against one shareholder at the behest of another without independent corroborative evidence that such action is appropriate.
“In this instance, extensive medical documentation would have to be produced in order to demonstrate the connection between the smoking and any related impact on the letter-writers health,” he said. Moreover, Mr. Dix said, it would also have to be proved where the smoke is coming from and whether it is, in fact, unreasonable.
“The burden, therefore, falls on the complaining shareholder to establish how the peaceful and quiet enjoyment of her apartment has been impaired,” he said, adding that if the co-op declines or fails to take action, it might be helpful to file a complaint with the New York City Department of Environmental Protection.
Cathy DelliCarpini, a spokeswoman for agency, said that if the department determines that a public health nuisance exists, it could require the other shareholder — or the co-op — to take steps to prevent the smoke from migrating into the letter-writers apartment. The number for the Department of Environmental Protection is (718) 337-4357.