Posted on 04/18/2017 5:54:19 PM PDT by Kaslin
Back in December we looked at one of the final “midnight regulations” handed down from the Obama administration which sought to ban smoking tobacco products in government housing units. That was a complicated case to be sure, but Susan Shapiro brings up an even stranger story at the Washington Post this week. Shapiro is a former smoker herself (who is to be congratulated for having kicked the habit fifteen years ago) and lives in a privately owned co-op which is considering banning smokers and even giving the boot to people who already own a unit there if they smoke.
The author finds this to be a bad idea, and her argument basically boils down to one of not punishing people for a habit they might not be able to quit and are engaging in on property which they paid for.
I know firsthand smoking isn’t good for anyone’s health. But a landlord shouldn’t be able to force a tenant to quit doing something that’s perfectly legal, that they’ve been doing in the privacy of their own home, just because it’s self-destructive — especially when a lot of people can’t just quit at will…
The U.S. Department of Housing and Urban Development maintains that its recently implemented smoking ban protects nonsmokers from secondhand smoke and reduces fire risks.
But changing rules that apply before someone moves in is different from dictating that owners can no longer smoke in a home they bought when cigarettes were allowed. If a co-op like mine kicks a smoker out, it might not even be possible to afford another place in the city. The cost of a small walk-up in my Greenwich Village neighborhood has skyrocketed to around a half-million dollars.
We’re getting into some totally different territory here when we begin talking about regulating private behavior on private property rather than government owned housing. It’s also important to keep in mind the difference between renting and owning. Hotels can legally forbid you from smoking in the rooms you rent and even charge you an astronomical cleaning fee if you break those rules. Apartment complexes become a bit more tricky because you are actually establishing a residence (and your home is theoretically your castle) but when you vacate the place the landlord will have to clean it, paint the walls and ceilings and do everything else to rid the place of residual smoking smells before renting it again. (Unless they are catering to smokers of course.)
But what really grinds my gears about Susan’s case is that this is a co-op. Her neighbors aren’t renting. They have to pay to purchase the property just as if it were a single family home, plus the generally accepted burdens of paying a fee to the co-op association (in most places) to cover maintenance costs. I can understand if the co-op board wants to ban smoking outside in the common areas shared by all, but inside of the residents’ homes? Once you accept their money and sell them a home, any legal activities they engage in while indoors should be their business. Yes, smoking is unhealthy, but as the author points out, tens of thousands of people die from situations relating to alcohol every year (be it automobile accidents of health problems) and you don’t see anyone trying to ban drinking in their rooms.
Perhaps this is less of a tobacco regulation question and more an argument over the legal rights of people living in condos and co-ops. If you are a renter you have a certain responsibility to preserve the value of the property (within reason) on behalf of the owner. But if you buy a unit in a co-op and do something which degrades the value, that burden falls on you when you try to sell it. It’s a question of personal responsibility. If anyone in the author’s building gets an eviction notice over this they should take it to court. I’d be very interested to learn the results.
Depends on what the legal coop paperwork says about eviction and corresponding state law.
Interesting case. Some lawyers are going to make some good money on that one.
This leads me to believe that a co-op board can exercise a lot of power over residents that a condo board cannot.
It depends on whether its a ‘house rule’ or a by-law.
While the Board of Directors can change the house rules, typically a change to the bylaws, which are usually incorporated into the proprietary lease, would require a 2/3 vote of the outstanding shares. It’s all under New York State corporate law.
In these big-money cases, everyone will lawyer up, and the litigation will go on for years.
It seems to me that a fair compromise might be to disallow smoking (if it’s legal to do so) for anyone moving into the co-op property but grandfather in an exception for current owners and tenants who choose to smoke. the problem will fix itself over time.
Purchasing property with covenants is extremely commonplace. If a person buys a condo (co-op) with a covenant that allows behavior within the condo to be regulated, then that’s the way it is. Look at some of the ridiculous rules that HOAs can apply to homeowners in a development. This is a totally feasible extrapolation of the same principle...
Yes.
But in the case of the co-op, the co-op corporation owns the property, and you are only entitled to a proprietary lease linked to your shares. However, changing a proprietary lease can be tricky, and most co-op corporations try to avoid the trouble and expense.
Even condos can ban——with a vote by owners———66-67% in most cases.
In the article, the writer states several times that the units are purchased just like buying a house.
Simple, they can grandfather in all existing owners.
And only allow sales to those who agree not to allow smoking in their units.
They might be able to evict the owner...maybe. I don’t see how they get out of paying them out for the fair market value of the unit.
This is exactly why you examine the incorporating documents of the co-op and what exactly your rights and obligations are.
I wouldn’t go anywhere near that sort of place. My former townhouse HOA was bad enough, can’t imagine an apartment co-op.
The process is very similar but the differences in the ownership arrangements make for some critical legal distinctions. A co-op board can reject potential owners, for example, in ways that a condo board cannot. People in high-end NYC co-ops run into this problem all the time.
It might depend on whether it’s a bylaw issue or a master deed restriction. I am working with a condo association where and amendment to the master deed requires unanimous consent.
Thanks——I was not aware of the difference.
(I learn something new everyday here.)
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Don’t see how they could if you are already there. I’m sure they can for future residents.
You’re welcome! Another thing to keep in mind is that condo laws may vary a lot from state to state.
Well, as I have said, a condo and a co-op are two entirely different types of legal entities, and different laws apply.
>>In the article, the writer states several times that the units are purchased just like buying a house.<<
I know co-ops are different than condos but not the differences. I do know they are able to screen — and reject — prospective buyers with no worries about Equal Housing laws.
It would be interesting to know how this happens (although I can conjecture).
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