It has become a hot button real estate issue: many condos and co-ops considering a vote to ban smoking in their buildings. NY1's Jill Urban filed this report.
Some say it is a health issue, while others say it is violation of people’s rights.
Real estate attorney Eva Talel of Stroock & Stroock & Lavan says the issue is not about banning smoking as much as it is about preventing smoke from impacting other people.
"It's not a question of whether you can smoke in your apartment," says Talel. "Of course you can smoke in your own apartment. But when your smoke goes into a neighbor's apartment, then you are smoking in your neighbor's apartment, and your neighbor has a right to not have smoking taking place in their apartment
."Talel represents many co-op and condo boards and advises them to first try to remedy the situation. If they cannot physically prevent the smoke from seeping into the units, then, she says, banning smoking may be the best way to protect residents' health and the building.
"Since a landlord has a legal responsibility to fix a second hand smoke problem," Talel explains, "if they can’t fix it then they could be in breach of their duties, and they could be held accountable by the court."
Many argue that it is not fair for a building to tell people what they can do in their own homes. But, Talel points out, many already do by requiring that 80% of floors be covered to limit noise.
However, Roberta Axelrod of Time Equities says tenants knew that before they moved in. She serves as a sponsor representative for 10 boards and says telling people what they can do in their homes after they have already lived there is a bad idea.
"It affects the market value as it's not normative in the market," says Axelrod. "It can result in litigation which is costly to the building, and it makes potential purchasers suspect as to what other kinds of rules might be passed that could infringe on their privacy."
Talel says a ban does not have to be all or nothing. A building can ease into the ban or grandfather people in.
While a board has yet to pass a smoking ban, many continue to discuss it.
