Co-op Board Bans Smoking in Apartments by New Owners
A co-op board on the West Side of Manhattan has forbidden new buyers to smoke in their apartments, a restriction that real estate experts called the first of its kind in the nation.
The board of 180 West End Avenue, a 452-unit building near Lincoln Center, is also requiring the buyers to declare whether they are smokers, an admission that could lead to the rejection of their applications.
The rule will not be applied retroactively, and current owners will still have the right to allow tobacco smoking in their homes. The new rule at the 29-story building does not affect the seven other separate cooperatives in the complex between 66th and 70th Streets, known as Lincoln Towers.
At its meeting last week, the board unanimously passed a resolution noting that smoking was already prohibited in the public areas of the building and that it would now be "prohibited in the apartment units" for residents moving in after April 22. A new owner who smoked in violation of the rule could be evicted and forced to sell.
The board's president, Scott Wechsler, a real estate lawyer, said the co-op had faced problems with smoking for several years. "We've had shareholders complain that they smell smoke coming through the vents," Mr. Wechsler said. "We've made extensive attempts to remedy potential penetration of smoke between units. Part of the problem is that you're never certain which apartment smoke may be coming from."
While co-op boards have long regulated everything from the size of dogs to noise levels, this rule breaks new ground, real estate experts say, and seems likely to stir up a legal debate touching on discrimination and, possibly, constitutional law.
Douglas Kleine, director of the National Association of Housing Cooperatives, said he knew of no other co-op in the country that banned smoking in apartments. "This is a first," said Stuart Saft, the chairman of the Council of New York Cooperatives and Condominiums, who is also the lawyer for the board of 180 West End Avenue.
It raises "novel issues of law," said Donna Lieberman, executive director of the New York Civil Liberties Union.
"The ban on smokers is an intrusive condition and is troubling, because the co-op is regulating purely private behavior," she said. Her organization, Ms. Lieberman said, would have to study the issue "before making a decision about challenging these restrictions."
Dean Rouse, chairman of Friends of Tobacco, a national nonprofit group, said, "I think it's unconstitutional."
Residents of the building had differing views. Ingrid Zeldin, a voice teacher and a shareholder since 1984 who is not a smoker, said: "I was thrilled. Being a singer and voice teacher, it doesn't work to be inhaling things and then try to use your lungs as a healthy instrument."
Julie Hughes Rothstein, a retired casting director on Broadway who called herself a "fairly heavy smoker," said she was "horrified."
"I think it's illegal," she said.
"I'm grandfathered, so it's not going to affect me personally," Ms. Rothstein said. "But I think it's going to lower the value of the apartments. We may have less buyers."
But Mr. Saft, the co-op's lawyer, said the board had surveyed real estate brokers and concluded that the rules might act as a "marketing tool for people who want to raise their children in a smoke-free environment."
Because there are no city, state or federal laws preventing people from smoking in their homes, he said, the board did not have an existing recourse for addressing complaints about smoke. "The idea then became that apartments wouldn't be sold to smokers," Mr. Saft said. "And on the purchase application, a person would have to indicate whether they smoke, and agree to not permit smoking in their apartments."
If a new shareholder begins to smoke in the apartment, the board could seek a court injunction, Mr. Saft said. "Theoretically, you could terminate their proprietary lease because they lied about not smoking," he said. "You'd have to get an eviction order, auction off the apartment, and they would get the proceeds, after the corporation is reimbursed for its costs."
Mr. Rouse of Friends of Tobacco said, "What the owners of this building are doing is simply being unfair, and they should reconsider their position."
Ms. Lieberman of the civil liberties union said: "There are questions as to whether the rule would violate laws prohibiting discrimination in housing based on disability. Quite arguably, for many smokers, smoking is an addictive condition that would amount to a disability."
But Michael Schill, director of the Furman Center for Real Estate and Urban Policy at the New York University School of Law, said, "It would be highly unlikely for smoking to be considered a handicap under the federal Fair Housing Act."
"The act prohibits discrimination based on mental or physical handicap," Professor Schill said, "but smoking doesn't fit easily within the definition of a handicap, which includes an impairment that substantially limits one of a person's major life activities." The professor also said he could not see how the new rules would be unconstitutional.
The national co-op association director, Mr. Kleine, who is not a lawyer, said, "Let's think of what else the Supreme Court has said you can't do in your own home."
"They upheld the Georgia statute against same-sex relations with consenting adults in the bedroom," he said. "But they also threw out the use of heat detectors so that police could tell whether you're growing marijuana inside your house.
"But these are government actions, and what you're looking at here is what actions a co-op board can take. This is much more of a private contract, and certainly the tendency of the courts is not to interfere with private contracts."
But property and privacy rights are also important, said Chuck Halpern, 69, who has owned a two-bedroom apartment at the co-op for eight years.
Mr. Halpern, who gave up smoking 20 years ago, said: "While I understand some of the people's attitudes about smoke invading their environment, my reaction is: where do we go from here? Start prescribing what people should wear?"