HABITAT Magazine
A large co-op in Queens never enacted a smoke-free policy, though the proprietary lease prohibits residents from allowing odors to travel from their apartment into neighboring apartments and common areas. A shareholder living above the elderly resident of a rent-stabilized apartment has been inundated with the downstairs neighbors’ cigarette smoke. After sending notices to the smoker for years and threatening to bring an eviction case, the property manager finally got the rent-stabilized apartment’s owner to agree to install smoke-abatement equipment in the unit. Ten weeks later, nothing has happened. The exasperated shareholder upstairs has a question: “What do I do now?”
Not much, replies the Ask Real Estate column in The New York Times. The co-op board, through its property manager, has made some effort to abate the smoke, and your neighbor has protections against eviction as a rent-stabilized tenant — both of which work against your chances of success in housing court.
“No one has a right to let smoke emanate into your apartment, but when it’s a rent-stabilized tenant, it makes it more difficult to take legal action,” says Lisa Smith, a partner at the law firm Smith, Gambrell & Russell.
You could bring the co-op to court, but it is covered by the business judgment rule, which protects co-op board actions that are made in good faith, making a legal claim difficult. Ultimately, it’s the apartment owner who is responsible for eliminating the odor.
Even if your board were to pass a no-smoking policy, it likely wouldn’t help your situation if it were enacted after your neighbor moved in. Rent-stabilized tenants typically enjoy the privileges they had when they arrived in the building, a practice known as grandfathering.
You can request that the co-op board hire a company that administers smoke tests, which can determine how and where the smoke is entering your apartment. The co-op should also gain access to your neighbor’s apartment to perform this test and make any necessary repairs, such as blocking avenues for smoke to escape the unit.
As for that promised smoke-abatement equipment, don’t get your hopes up. Adam Leitman Bailey, a lawyer who has handled cases involving smoke odors, says that, in his experience, “That machine has never worked to solve any case.”
Sadly, this shareholder’s best hope might be a suggestion that involves neither the courts nor technology: ask the smoker downstairs to open her windows when she lights up.