Legislative Push to Curtail Smoking Inside Apartments Hits Manhattan

Smoking bans in Manhattan apartments are becoming more popularIn a city where it’s already illegal to smoke in restaurants, bars, parks, and beaches, smokers could always retreat to their apartments to light up. Those days may be over. Condo and Co-op boards in Manhattan that want to ban smoking in their buildings may soon have the legal means to do so, because both Mayor Bloomberg and the Real Estate Board of New York (REBNY) proposed new policies this week that would facilitate the creation of smoking bans in Manhattan apartment buildings. Many condominium and co-op boards are increasingly considering banning smoking, and not just for health reasons: in the past, boards worried that smoking restrictions would limit the amount of potential buyers, but now the national rate for smokers is roughly 20%. With non-smokers significantly outnumbering smokers, many boards believe that banning smoking in their buildings will actually become a marketing advantage that helps attract potential buyers.

Neither proposal would ban smoking in individual Manhattan apartments outright, but they would provide ample legal cover for building owners to do so. Bloomberg proposed a bill to make smoking policies for residential buildings mandatory and require building owners to disclose those policies to potential renters and buyers of Manhattan apartments, while in a separate move REBNY proposed guidelines for streamlining the process of implementing no-smoking policies for inside apartments. The city cited statistics that over 50% of adults living in New York City apartments with multiple dwellings reported being exposed to secondhand smoke from neighboring apartments. Considering that attitudes toward smoking have shifted dramatically in the past 10 to 15 years, it appears that most apartment owners in Manhattan back these changes.

The Mayor opposes smoking but supports the right to smokers to “kill themselves,” as he put it. He has research on his side too: a 2006 Surgeon General’s report found that, “There is no risk-free level of exposure to second-hand smoke.” If this is true, than it’s easy to see why second-hand smoke that carries from one apartment to another is not a mere annoyance based on personal sensitivity, it’s a legitimate health risk with legal implications. In fact, there’s even a legal precedent for suing smokers for second-hand smoke in residential apartment buildings.

In 2006, Stanley and Michelle Bryant moved out of a condo they were renting in 22 West 15th Street near Union Square Park because second-hand smoke was seeping in from a neighboring apartment. Michelle Bryant was recovering from cancer surgery at the time and was also allergic to the smoke. When Peter Poyck, the condo owner, sued them for back rent, the judge sided with the Bryants in the case of Poyck vs. Bryant, saying that the smoke violated the “warrant of habitability.” In other words, he stated that second-hand smoke is a condition that harms life, health, and safety for Manhattan apartment residents. That legal precedent applies not only to co-op and condo boards but to rental buildings as well.

Two lawsuits of the same nature are ongoing at 200 Chambers Street in Tribeca, where a couple is suing their neighborhood for $20,000, and at 260 Park Avenue South in Gramercy. Clearly, many people would be attracted to a smoke-free building, and if such bans become popular, it may be that Manhattan condominiums and co-ops that lack those bans may become de facto smokers buildings, even if they don’t advertise themselves as such. If Bloomberg and REBNY have their way, smokers looking for apartments in Manhattan might have a much tougher time in the future.

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