Is secondhand smoking bothering you in your New York apartment or condo? Discover your alternatives here.
Living in an apartment or condo complex in New York is frequently difficult, particularly when your neighbors’ behaviors interfere with your life in undesirable ways. Secondhand smoking, like loud neighbors, is becoming a typical tenant concern. Whether you have a respiratory condition like asthma, are concerned about the health effects of secondhand smoke (especially if you have children at home), or simply don’t like the smell of cigarette smoke wafting into your apartment, there are steps you can take to try to limit or eliminate your neighbors’ smoking.
The law may be on your side depending on where you reside in New York. Some cities and counties prohibit smoking in multi-unit residential structures, although the majority do not. You have some alternatives for coping with secondhand smoking in New York, no matter where you live.
Is smoking prohibited or restricted in your lease or rental agreement?
As nonsmoking regulations grow more common, an increasing number of New York landlords are forbidding or regulating smoking in their rental properties.
If you’re worried about secondhand smoke in your apartment, one of the first things you should do is go through your lease or rental agreement for any no-smoking policies or smoking limitations. Some New York cities and counties, including New York City, require landlords to include a smoking policy in the lease. It’s usually a good idea to get any smoking regulations in writing before signing a lease or rental agreement, but you may request a written copy of the policies from your landlord at any time. If your lease or rental agreement limits or restricts smoking, your landlord may be entitled to hold the violator accountable.
Whether you reside in a condo, you should also check with your homeowners’ organization (HOA) to determine if your building or common spaces have smoking restrictions. Even if your landlord does not specify the HOA’s limitations in your lease or rental agreement, you are obligated by them, as are the other HOA homeowners. While you should initially contact your landlord about the secondhand smoke issue, if your landlord is uncooperative, you may also approach the HOA’s board for help enforcing the smoking limits.
Is secondhand smoke becoming a nuisance?
Even if your lease (or CC&Rs, if you live in a HOA) does not explicitly prohibit smoking, you may have another option to combat intrusive secondhand smoke. A provision in your lease or CC&Rs may prevent occupants from causing a nuisance—something that interferes with another’s use or enjoyment of property. If the presence of secondhand smoke in your unit satisfies the legal definition of a nuisance, you may be entitled to sue your neighbor or landlord to stop the conduct and maybe recover damages.
Examine Federal and State Smoking Bans.
There is currently no statewide regulation in New York forbidding smoking in private residential units such as flats and condominiums. However, smoking may be restricted or prohibited in your rental home due to federal, local, or county restrictions.
Smoking is prohibited in public housing under federal law.
Smoking is prohibited in all public housing apartments and common rooms, as well as in outdoor areas up to 25 feet from structures, according to the United States Department of Housing and Urban Development (HUD). If you reside in a building that is subject to this rule, preventing the flood of secondhand smoke may be as simple as recording the incursion and submitting a complaint with the property management.
Smoking Regulations at Local and University Levels
Many towns and counties have regulations that prohibit smoking in certain places. For example, New York City passed the Smoke-Free Air Act in 2002, which forbids smoking in multi-unit residential buildings with 10 or more apartments’ lobbies and corridors, stairwells and elevators, and other common places.
Similarly, numerous New York colleges, including New York University, City University of New York (all campuses), and State University of New York, have implemented smoke-free regulations. To find out whether your institution is tobacco or smoke free, go to the Tobacco Free College Campus Initiative.
Visit the American Nonsmokers’ Rights Foundation to determine whether your city or county has a legislation forbidding or regulating smoking in private or public dwellings; this group also provides substantial resources for renters worried about secondhand smoke (as well as information on e-cigarettes and vaping). Smoke Free Housing NY also provides assistance to residents around the state.
Discuss Secondhand Smoke with Your Landlord
When you have issues with secondhand smoking in your rental home, the best place to start is with your landlord. Also, if other tenants are impacted by secondhand smoking, check if they would join you in informing the landlord of your concerns. Explain the lease restrictions or legislation, and request that your landlord enforce them to persuade the problematic neighbor to cease smoking. Even if there is no appropriate lease agreement or statute, you might suggest that secondhand smoking is an annoyance and a health concern—your landlord may be prepared to step in.
How to Address Secondhand Smoke with Your Landlord
Taking a non-confrontational approach with your landlord is likely to work best—vital it’s to remember that your landlord may be unaware of the situation. Describe your worries about secondhand smoking and how often you see it in your apartment. Highlight the exact lease term or statute that forbids or regulates smoking in your apartment complex or condo complex (if any). Give some possible solutions to the situation (such as fixing cracks in the walls or repairing faulty vents that allow smoke to drift into your home from a neighboring apartment). Please give your contact information so that the landlord may further discuss the situation with you.
It’s quite OK to express your issues in writing, and it may be very useful, since it makes a record of your worries and attempts to remedy the matter. Keep copies of any letters, emails, and notes from meetings with your landlord in case you need them in the future.
Even if you haven’t located a lease term or a local legislation that forbids or limits smoking on the rental property, you (and any other concerned tenants) should attempt to speak to your landlord, since secondhand smoke is harmful to anybody who is exposed to it. Perhaps you can work with your landlord to implement a no-smoking policy in your apartment complex. Alternatively, you may be able to find a sensible solution, such as banning smoking to certain places. The American Lung Association provides a wealth of resources to assist you make your case, such as Smokefree Policies in Multi-Unit Housing.
Your Legal Options Regarding Secondhand Smoking
If you are unable to reach an agreement with your landlord and the secondhand smoke is interfering with your life or impacting your health, you should consider moving out. You may be able to terminate your lease due to the health risks of secondhand smoking, depending on the circumstances and state legislation.
Depending on the severity of the situation, you may want to consider filing a lawsuit against the landlord. You may be able to argue that the secondhand smoke is a nuisance or interferes with your right to enjoy and utilize your rental. Despite the fact that several New York courts have ruled that secondhand smoke is a nuisance or violates the implied warranty of habitability (for example, Poyck v. Bryant, 13 Misc. 3d 699, New York City Civil Court (2006)), keep in mind that these cases will be difficult to win without laws—and very thorough documentation of the problem and its effects—on your side.
If you merely wish to sue for monetary losses (for example, dry cleaning or medical fees due to secondhand smoking), you might file a complaint in a New York small claims court. In town or village courts, you may sue for up to $3,000, and in city courts, you can suit for up to $5,000. You may sue for up to $10,000 in New York City.
Remember that these types of cases may be expensive, time-consuming, and destructive to relationships. You should speak with a lawyer to review your alternatives and determine if a lawsuit is worthwhile.
