Yes, a condominium board’s obligation to regulate second hand smoke is based on New York Real Property Law (RPL) section 339-v(b)(i) which requires all condominium bylaws to include such restrictions on and requirements respecting the use and maintenance of the units and the use of the common elements, not set forth in the declaration, as are designed to prevent unreasonable interference with the use of their units and of the common elements by the unit owners.

The New York Supreme Court, Appellate Term, 1st Department held that the condominium board is specifically authorized to make determinations regarding the operation, care, upkeep, and maintenance of the common elements in the building, and to enforce any bylaws and rules among unit owners, including the rule prohibiting one resident from interfering with the rights, comforts or conveniences of other unit owners.

Condominium boards must act for the benefit of the residents collectively. They have a fiduciary duty to enforce bylaws and rules among unit owners in a non-discriminatory fashion,. If a condominium board fails to enforce a bylaw prohibiting or restricting smoking and exposes the condominium to a possible lawsuit for damages by unit owners, the board is acting contrary to the collective interests of all residents in breach of its fiduciary duty.

If the board fails to enforce a bylaw designed to limit the effects of secondhand smoke, or fails to prevent secondhand smoke from infiltrating into units from the common areas, or if a building-wide ventilation problem facilitates the circulation of the secondhand smoke, the unit owners’ sole recourse for smoke infiltration is against the condominium board.

A condominium’s authority to act on smoking problems is based on RPL section 339-j , which requires each unit owner to comply strictly with the by-laws, rules, regulations, and resolutions. Condominium boards are empowered to sue an offending unit owner for damages and/ or injunctive relief. A unit owner having flagrant or repeated violations may be required to post a bond to ensure future compliance.

If you are part of a Condo Association or Condo Board in New York and are facing a legal challenge and would like to speak with an attorney, I invite you to call me at 585-484-7432.