The Ladder Approach to Resolving Apartment Smoking Disputes

Smoking disputes have exploded since the pandemic, and they're turning neighbors into enemies faster than ever. In this episode, Peter Massa, partner at the law firm Fox Rothschild, reveals why boards that ignore these complaints face serious legal liability. He shares his proven "ladder approach" for resolving conflicts before they escalate into costly lawsuits. You'll discover practical strategies for investigating complaints, working with uncooperative residents, and implementing rules that put responsibility squarely on smokers to prevent odor migration. Whether you're dealing with traditional cigarettes or medical marijuana complaints, this conversation gives you the roadmap to protect both your residents and your board from expensive legal battles while finding solutions that actually work. Habitat's Paula Chin conducts the interview. 

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors. My guest today is Peter Massa, a partner at Fox Rothschild, who's here to talk about one of the most common problems for boards: smoking.

Peter, I understand that problems have gotten a lot worse since the pandemic. And with all these, with this increase in problems, are you seeing any particular trends or wrinkles that boards are facing and need to know about? 

Peter Massa: Thanks, Paula. First off, it's good to be here with you again. I always enjoy speaking to Habitat and participating in these forums. So as you said, since COVID, we have seen a lot more smoking and other quality of life, like noise disputes. People are home more, people are around more. You have more people working from home. So this stuff tends to come out a lot more. And the problem with these issues is that they can escalate and get very personal and very confrontational very fast. Each side digs in. The smoker thinks, I have the right to smoke in my apartment, stop bothering me. The person getting disturbed thinks, I have the right to use my apartment in a way that doesn't, for some people, make them sick or at least make them uncomfortable. And I'm entitled to live in an apartment that doesn't have secondhand smoke in it.

And those two worlds collide. And many times there aren't a lot of great answers to get to a perfect solution on those problems. But there are things you can do and things boards should do, more importantly to protect themselves and I'm happy to discuss some of those. 

Paula Chin: Let's take a step back, Peter, and talk about the kinds of problems that come up.

Is it a lot now that has to do with medical marijuana? Is it more younger people who are smoking? Or are there some kind of interesting twists to who is doing the smoking? 

Peter Massa: The two most common ones I see are it's more older people when it's tobacco and traditional cigarettes and people that have smoked forever and oftentimes lived in these apartments and smoked forever.

But someone new moves in who happens to be more sensitive than the person in the past was. So to the smoker, nothing has changed. I've always smoked in here. I've always done my thing, and now you're bothered. And to the person new, again, I should have the right to live in an apartment that doesn't bother me and doesn't create secondhand smoke.

Paula Chin: Can you tell us about any particular case or building that you've dealt with that illustrates this problem and perhaps how the board handled it correctly or perhaps not so well? 

Peter Massa: Sure. Let's do the not so well first, because that's what's important, right? What boards should avoid. And the biggest thing for boards, and probably the biggest takeaway here based on the applicable case law and what there's been on this is don't ignore. If someone is making these complaints, the board doesn't necessarily have a duty to take action, but the board does have a duty to investigate and determine whether the complaints are legitimate and when boards have been found liable in these situations, it's generally because they ignore things, don't take any action and don't do anything. So the right way to handle if a complaint comes in and says, I'm getting smoke in my apartment, the instructions to the resident of that apartment, the person complaining is, please notify the building staff when this is happening, and they'll come to your apartment and verify that there's smoke.

And then try to determine where the smoke is coming from. Oftentimes you do know, once in a while you don't know, and it's coming from a source where you don't think it would be coming from. But a staff member would then try knocking on those doors and to determine if we can at least figure out that one, that there is a problem, that smoke's traveling from one apartment to another, and two that we know where it's coming from.

Paula Chin: So the first thing is to determine that there is a problem. 

Peter Massa: Correct. 

Paula Chin: And let's say you do, what happens next? 

Peter Massa: I always like to call the way you handle situations like this a laddered approach. You start mild, you try to give someone the benefit of the doubt, and then you escalate one step by one step as necessary.

So the first step is to try to have a talk with the person smoking and say, this person's complaining about smoke emanating from your apartment. One, are you smoking here? Are you smoking in a certain section of the apartment? Can you go outside? Can you smoke out the window? There are a lot of smoke eaters and other air filters that if people smoke into, they're not perfect, but they do a pretty good job of at least dissipating the major issues.

There are also things like filling in cracks and other things that the building can help do , if you can figure out where the smoke is getting through, to seal up those things, change vents, whatever it is to prevent the smoke from getting into the other apartment. 

Paula Chin: And which, corrections are the smoker's responsibility and which are the board's?

Peter Massa: The most of those corrections would fall under shareholder or resident responsibility, but I do have many buildings who, in thinking practically on this and trying to avoid major disputes, will have staff help out doing things like sealing cracks to try to stop the dispute, try to avoid major legal fees and things like that. Because if you can come to a practical answer that works for everyone, that's better.

One other thing boards can and should do proactively is impose rules and regulations that deal specifically with these issues. Now, if you want to prohibit smoking, the consensus is you have to amend the proprietary lease or amend the bylaws. I do have some buildings that have eliminated smoking through rules, but that is the consensus in the industry.

But a board can make rules that are a lot more specific and put the onus on the smoker to prevent smoke from emanating from the apartment. So the traditional older rule and proprietary lease section just said the shareholder shouldn't allow any smoke or noxious odors emanating from the apartment.

But the question is, what's a noxious odor? So the more modern rules, say the resident, and the smoker shall take any proactive action necessary to prevent smoke from going into another apartment, which gets to the smokey, there's the gaps, the door filters and whatever else you can do to prevent this.

And you're putting the onus on the resident to not just not let the odors out, but to take proactive actions from preventing it. So that's one thing that I recommend all boards do. 

Paula Chin: Now to do that, changing the proprietary lease or the declaration that involves a super majority vote? 

Peter Massa: To be clear, you'd only need to do that if you're prohibiting smoking in the building. Just to change the rules. That would be a board. 

Paula Chin: Okay. If let's say you have a record of the smoke emanating or the odors. It's been established that it's coming from a certain apartment.

I would imagine the board would want access to see perhaps what can be done or what things need to be plugged up. What if the person is uncooperative? 

Peter Massa: So the situation you're referencing definitely happens and has happened several times. And again, I recommend a laddered approach. The first thing is, 'cause in a lot of cases, as I said, these are older people.

Try to see if there's any family members, caregivers, home health aides, anyone you can work with. If that's not the case, then you start with the managing agent notice. Then the warning notice comes from us, and then you start with more formal notice to cures and eventual having to bring an action to get access under the proprietary lease.

But we really do it one step at a time and try to work with people as much as we can to make these situations work.

Paula Chin: Can you talk about a building where something like this happened, perhaps an older, longtime resident, and how it was dealt with and resolved? 

Peter Massa: Sure. So in process of dealing with a situation where a chronic smoker who has a home health aide, as we discussed, when the home health aide is there during the day, the smoking is not a huge problem because the home health aide takes care of it. At night, when the shareholder is alone, it becomes a much greater problem. And the shareholder's basically said, I'm eighty-something years old. I'm doing what I want. Come get me. And we're going to have to, at some point, if the complaints keep coming in, start moving that process.

Paula Chin: And if boards obviously can't correct a problem, then of course they're vulnerable to lawsuits, right, from the people who are being affected because they might claim it's violating their warranty of habitability. Is that something boards have to keep in mind? I would imagine so to nip the problems in the bud?

Peter Massa: Yes. But as I mentioned, the liability generally comes in when a board's doing nothing. If a board is trying to take action and has thus far been unsuccessful because of a slow court system or other reasons, or an uncooperative shareholder, as long as a board can show, I'm trying to deal with this, I don't see a lot of potential liability for the board there.

The liability when boards really have had adverse decisions by courts is when they don't do anything. 

Paula Chin: What's the takeaway here, Peter? I would imagine that part of this ladder would be to talk to people so that they feel heard. 

Peter Massa: I'm laughing 'cause I say that to clients a lot. Part of resolving these disputes is allowing someone to be heard a absolutely. And trying to find something that works for both sides as early in the process as possible, before positions really get hardened. As I mentioned at the beginning, these situations get very emotional, very fast, and the sooner you deal with it and try to figure out the practical solution before everyone just retreats to their corners, the better off you do.

And the takeaway for boards is, as I said, don't ignore, investigate. If you really don't think there's a problem, send a response letter saying, we investigated this matter. We don't believe there's a violation of the rules. We now consider this matter closed. Because that then puts the onus on the complainer to be able to have to actually take proactive action to say, You were wrong, versus just they're not doing anything, they're ignoring.

So it's never good to leave these cases unresponsive. 

Paula Chin: I think that's a good rule for boards always right, not to delay things and address them quickly. Peter, this has been really informative. Thank you so much for joining us today. 

Peter Massa: Thank you.