Cutting Through the Smoke: Applying Local Laws 141 & 147 to Cooperatives and Condominiums in New York City

As public opinion has turned against smoking, NY laws have followed. Smoking bans in public spaces have included stores, schools, and taxis in 1990, bans in restaurants and indoor bars in 2002, and parks, beaches, and pedestrian plazas in 2011. The popularity of the smoking bans in our public spaces have let legislative sights turn to residential buildings. The latest is Local Law 147 (“LL147”). Effective on August 28, 2018, LL147 requires residential buildings with three or more units to develop and distribute a written smoking policy. However, unlike the smoking bans, LL147 does not require condominium or cooperative boards to ban smoking in its entirety. Instead, it forces boards and unit owners to have a hard conversation and clarify what neighbors expect of each other. On its face, LL147 is agnostic about the content of the new smoking policies; it only asks that clear building policies are being put in place.

Even the laxest smoking policies distributed under LL147 may still be subject to other smoking laws targeting residential buildings, like Local Law 141 (“LL141”) which prohibits smoking or using electronic cigarettes in the common areas of most residential buildings. LL147 can make LL141 more transparent for residents by clearly outlining a smoking prohibition in the shared common areas while clarifying how the building will treat limited common elements like personal balconies and any other outdoor areas that may be connected to residential units.

On the other hand, for buildings looking to adopt a stricter policy, LL147 leaves open the door for boards to discuss and mandate a completely smoke-free environment throughout the building – including within individual apartments. If a board decides to go completely smoke-free, and adopts a new policy using the proper governing mechanisms, all residents may be required to follow the policy, including unit owners, their future renters (current renters may be carved out depending on their leases), and anyone invited onto the premises. Because LL147 leaves it to the buildings to self-govern, it sidesteps the issue of whether the law allows for strict regulations that pierce the sanctity of the home. Even buildings whose residents largely support going smoke-free may still be cautious about how a strict ban can be properly applied, implemented, and enforced.

Like pet policies, smoking policies can feel very personal. For prospective purchasers sensitive to smoke or those who are avid smokers, reviewing the new smoking policy is another important item to flag for your brokers and attorneys during the diligence phase of vetting a new home. But for unit owners caught off guard by a new strict policy or prospective buyers who don’t like what the diligence reveals, know that ultimately any policy is subject to change; it comes down to what your board and your neighbors want. Ultimately LL147 is just a harbinger – potentially showing a trend towards stricter smoking regulations to come.

 

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