Smoked Out
What happens when, in an apartment building or condo, the smoker next door becomes the smoker in your apartment? Bradley Hope writes for The New York Sun:
Benjamin Zitomer lived happily with his family in a two-bedroom apartment at 99 Jane St. in the West Village for six years before a new tenant moved in next door and brought an unexpected menace: It wasn't rats or cockroaches or even noise; it was secondhand smoke."It came in through the bedroom wall and permeated in through the front door," Mr. Zitomer, 49, a database administrator, said. "Our apartment was filled with smoke almost every night. We had to have the windows open in the middle of the winter."
Secondhand smoke is overtaking noise as one of the most common complaints coming before condo and co-op boards. While the issue isn't new, real estate lawyers say that with New Yorkers prohibited from smoking at work, in bars and restaurants, and even directly in front of buildings, the battle against secondhand smoke is increasingly taking place at home.
"This is the hot controversy in condos and co-ops right now," a real estate lawyer who gets a new smoking-related case about once a month, Aaron Shmulewitz, said. He added that with more science confirming the dangers of secondhand smoke and fewer people picking up the smoking habit, homeowners are more sensitive to the problem.
"We were really upset and frustrated," Mr. Zitomer said of his experience. "We couldn't go out to escape it. My son had to go to sleep just as it started up at night, and it lasted until 4 or 5 a.m. This guy was something of a night owl."
The president of the board at 99 Jane St., Salvatore Rasa, declined to comment. He said secondhand smoke "is an issue we are all learning about."
For Mr. Zitomer, the problem wasn't so much the initial assault of the smoke on him, his wife, and his 3-year old son as it was his lack of legal recourse.
All told, it took him 10 months to resolve the issue — the condo board eventually rejected the smoker's request to renew his lease when it came up in August — but it could have dragged on for years.
The issue of secondhand smoke represents murky legal territory for lawyers, with little case law on which to base a claim. Essentially, condo and co-op boards must make a reasonable effort to determine the source of the smoke and attempt to mitigate the effects. If they fail to do that, homeowners and tenants can refuse to pay maintenance fees or rent, Mr. Shmulewitz said.
"A board that ignores complaints like this is acting at its own peril," he said.
There are several difficulties for building boards. Namely, secondhand smoke is subjective, with some people sensitive even to the suggestion of smoke, while others are not bothered unless it is happening directly in front of them.
"Another interesting question comes down to payment," a partner at Stroock & Stroock & Lavan who is the chairwoman of the New York City Bar Association's Committee on Cooperative and Condominium Law, Eva Talel, said. "Does the smoker pay to fix the problem or the tenant or the board? Or do they share the cost?"
I really don't understand how it can be considered civilized behavior to emit foul -- and even possibly deadly or health-impairing -- odors which seep into your neighbors' apartment. If you were doing something in your apartment that gave off sulfuric-smelling gas that spread to the rest of the building, how fast would the "warrant of habitability" people be on you to stop? Why is cigarette smoke different? You want to foul your lungs and the place you live with the stuff, fine. Just don't smoke me out. Oh yeah, and put away a little money for your emphysema and possible lung cancer -- and the same goes for people who eat themselves into obesity and diabetes. You break it, you pay for it, thanks.
via Obscurestore