In August 2017, the New York City Council enacted a change to Local Law 147 of the City of New York (Section 17-502 of the administrative code) which has attracted little attention, but affects co-op, condo and rental buildings across the City. As amended, Section 17-502 now requires all Class A multiple dwellings to adopt and disclose a smoking policy with respect to all indoor and outdoor areas on the property. That means a policy must be articulated with respect to all apartments, indoor common areas, balconies, courtyards, rooftops and any other common or private outdoor areas.
A copy of the building’s policy must be provided annually to each tenant (a term which, for purposes of Section 17-502, includes all unit owners in a condominium, and all tenant-shareholders in a co-op, as well as all tenants and subtenants), or posted annually in a prominent location in the building. Any material change to the policy throughout the year must be similarly disclosed and promulgated, and the notifications regarding the building’s policy (and notifications of material changes to the policy during the prior year) must be kept available for inspection. Violations are punishable by a civil penalty of $100 per violation.
The obligation to comply with the smoking policy disclosures falls upon the owner of the building, which, for co-ops and condominiums, means the building’s board of directors (or managers). Once adopted by the board, the policy must then be incorporated into either the by-laws or house rules of the building. The policy must also be incorporated into leases, subleases – and even purchase agreements – for apartments in the building. The amended text of Section 17-502 does provide a pair of “grandfather” clauses, the first exempting tenants renting or leasing a dwelling unit at the time the smoking policy is enacted or modified (unless the lease provides otherwise), and the second exempting tenants of rent controlled or rent stabilized dwellings (or any successor family member) in occupancy prior to the adoption of the initial smoking policy.
It should be noted that, although co-ops and condominiums (among other Class A multiple dwelling owners) must comply with the requirements of Section 17-502, the new smoking policy requirements do not translate to new powers for co-op and condominium boards. In other words, if the building’s by-laws (or, for co-ops, the form of proprietary lease) do not already either contain some variety of smoking ban (and do not grant the board the authority to adopt one), then Section 17-502 does not grant the board the authority to enact a de facto change to the proprietary lease (or by-laws) without the requisite shareholder (or unit owner) vote. Although the board must articulate and disseminate a policy regarding smoking, the policy must be in line with the provisions regarding the use of apartments and common areas in the building’s governing documents.
Ruben Ravago is Special Counsel at Braverman Greenspun, a law firm dedicated to representing Boards of Directors and Managers of Condominiums and Co-ops in the metropolitan New York City area. Over the firm’s 50-year history, we have served as general counsel to hundreds of properties and developed broad expertise in litigation, transactions, leasing, financing, and the governance issues facing cooperatives and condominiums. One of the first firms in New York to specialize in this practice area, Braverman Greenspun provides some of the most sought-after counsel in the industry.