When it comes to your housing, is prohibiting smoking in place? Many residential co-op and condo boards are finding that cigarette smoking regulations are a hot button issue. Whether they are able to impose bans on what residents are allowed to do in the privacy of their own home, and whether they should do so or pursue other ways to cut back on secondhand smoke affecting residents is another matter.

In the case of Reinhard v. Connaught Tower Corp., a decision by the New York Supreme Court dealt with a situation that concerned this issue.

co-op cooperative attorneyThe Connaught Tower Corp. was a Manhattan residential co-op that was home to plaintiff Susan Reinhard. She had bought an apartment there in 2006 and lodged a complaint about smelling cigarette smoke in her apartment in May 2007 after smelling it since January of the same year.

However, the board did not respond to her complaint. They denied that they were legally required to act on the issue. The board effectively informed Reinhard that she would have to alter the apartment if she wanted to take action against the second-hand smoke on her own dime. In response, she left her apartment and ended up suing Connaught Tower Corp. for complete maintenance abatement.

So who won? Well, Susan Reinhard was awarded $120,944.38 in six-year maintenance abatement and coverage of attorney’s fees and interest on the abatement at 9% per annum. This was reached due to her leaving the apartment, a considerable breach of the warranty of habitability, and a breach of proprietary lease.

The abatement awarded by Judge Engeron was based on the fact that the value of an apartment that is polluted with secondhand smoke is zero. The plaintiff had the burden of proving a breach of contract and did so, thus having the benefit of receiving bargain damage. She deserved the value that the apartment would have been if it had been smoke free.

Building owners can provide smoke free residences by saying that you cannot smoke in or outside of residences to be sure that tenants do not breathe in second hand smoke. Even co-op boards have the burden of reducing second hand smoke infiltration into the building or being smoked at all. However, a trial court decision may not be replicated in other states and until reversed has effectively set a precedent.

While it’s not set whether these decisions will impact condos, building owners can help themselves out either by instituting no smoking policies or adapting the apartments so smoke does not seep into other residences. Since bans are more affordable than full-scale remodels, it’s foreseeable that action could take the form of restricting smoking on the property. Boards may only have to address the issue, however, when someone complains about the condition, and perhaps not even then.

Buildings must get rid of the secondhand smoke issue one way or another to avoid legal liability. Whether it’s banning smoking on the residence or amending laws or documents or putting the burden on the smokers, action must be taken to address smoking complaints by tenants. Non-compliance may result in proceedings or the levying of fines. Every co-op and condo is different, but smoking may be the next thing to go to avoid legal liability in both.