Court: Condo Association Has the Right to Amend Bylaws to Bar Smoking Within Individual Units

In February 2014, our client, a Westchester County condominium association (the “Association”), amended its bylaws to bar smoking everywhere on the condominium property, including inside individual units (the “No Smoking Bylaw”). One unit owner (“Defendant”) continued to smoke in his unit despite the Association's demands that he comply with the No Smoking Bylaw. The Association retained us to enforce its rights under the Bylaw.

A Condominium's Bylaws May Restrict Conduct Within Units

While New York courts had previously ruled that second-hand smoke could constitute a nuisance that could be enjoined in particular cases, no court had decided whether a condominium association had the right to bar smoking in units based purely on the authority of the bylaw. In fact, we found just one relevant decision nationally, a 2005 Colorado decision that upheld a condominium declaration amendment barring smoking in units.

Even though no prior decision had focused specifically on an Association's authority to restrict smoking within units, we found numerous examples of New York courts upholding condominium directives regulating other types of conduct within units to prevent unreasonable interference with other unit owners' use of their units and the common elements, e.g., Bd. of Managers of Vill. View Condo. v. Forman, 78 A.D.3d 627, 630, 911 N.Y.S.2d 378 (2d Dep't 2010), citing Real Property Law ' 339-v(1)(i).

Generally, courts have determined that when buyers choose to purchase a condominium unit, they subordinate certain rights that fee owners normally maintain to the interest of the group of unit owners who share common interests with them. Schoninger v. Yardarm Beach Homeowners Ass'n, Inc., 134 A.D.2d 1, 6, 523 N.Y.S.2d 523 (2d Dep't 1987). Indeed, condominium associations frequently pass rules governing conduct within units that could affect others (such as requiring carpeting, imposing pet restrictions and limiting noise during certain hours). Therefore, a smoking restriction arguably falls into the same category as other blanket restrictions that (if violated) would inevitably disturb other condominium residents.

The Association's Valid Amendment of Its Bylaws

Under New York law, a condominium's bylaws can only be amended by a positive vote of at least 66.67% of the ownership interest. See Real Property Law ' 339-v(1)(j); see also Bd. of Managers of Vill. View Condo., 78 A.D.3d at 630. The process by which the Association passed the No Smoking Bylaw was beyond reproach. In late 2013, the board of managers (the “Board”) held a “town hall” informational meeting with unit owners to discuss the health risks caused by second-hand smoke within a multi-unit building. The overwhelming consensus of the unit owners favored amending the Association's bylaws to add a new provision that would make the condominium “smoke free” by prohibiting smoking in all areas inside and outside the building, including within individual units and on terraces. Subsequently, the Board called a formal meeting of unit owners to vote on the proposed No Smoking Bylaw. The amendment was approved by an affirmative vote of 82.19% of the ownership interest.

The Court Issues a TRO

We advised the Association that in our judgment, it would ultimately prevail in an action against the Defendant. The more pressing question was whether or not we could obtain a temporary restraining order (“TRO”) and preliminary injunction enjoining the Defendant from violating the No Smoking Bylaw while the case was pending. We were confident that we could prove likelihood of success on the merits with respect to the Association's breach of the No Smoking Bylaw and nuisance claims, as well as the balance of equities in the Association's favor. However, we did not want to rely upon specific evidence of nuisance to show “irreparable injury,” since that would invite the court to restrict its decision to this particular case rather than acknowledging the enforceability of the Bylaw.

We requested the court to take judicial notice of several government reports, most importantly two reports from the U.S. Surgeon General detailing the health risks caused by second-hand smoke. Among other things, the U.S. Surgeon General's reports concluded that exposure of adults to second-hand smoke has immediate adverse effects on the cardiovascular system, and causes coronary heart disease and lung cancer; second-hand smoke causes premature death and disease in children and in adults who do not smoke; and scientific evidence indicates that there is no risk-free level of exposure to second-hand smoke.

We also cited to engineering studies showing that given the design of modern multi-family buildings, it was impossible to prevent second-hand smoke from infiltrating into other units and common areas in a building. In addition, we submitted several affidavits from other unit owners verifying that they frequently smelled the smoke coming from the Defendant's unit.

We commenced our action in Supreme Court, Westchester County, and submitted our application for a TRO and preliminary injunction. The court granted our application for a TRO the next day without requiring oral argument.

Judge Recognizes the Likely Validity of the No-Smoking Bylaw

When we appeared in court on the Association's application for a preliminary injunction, counsel for the Defendant contended that the amendment was unfair because there was no smoking restriction in effect when the Defendant purchased his unit for $1.5 million, and the Defendant would not have bought it at that time if smoking had been barred in the building.

We argued that the amendment that added the No Smoking Bylaw was valid under New York law because it was approved by more than 66.67% of the ownership interest. We also emphasized that the deed by which the Defendant took title to his unit provides that he agreed to comply with all the terms of the bylaws “as ' they may be amended from time to time.” We further focused on the immediate risk of harm that unit owners would be subjected to if the Defendant did not comply with the No Smoking Bylaw.

Although the judge reserved a decision on the application, she expressed her initial view that the No-Smoking Bylaw was likely enforceable, and that the parties should look to settle the case. The judge then brokered a settlement set forth in a “So Ordered” Stipulation of Settlement in which the Defendant acknowledged that the No-Smoking Bylaw was valid and enforceable, and agreed to pay a sizeable portion of the Association's total fees.

Conclusion

Since the action was settled rather than formally decided, technically no precedent was created. However, based on the reaction of an informed and intelligent court to the arguments that were made, supported by the evidence in the reports from the U.S. Surgeon General and the precedential support of prior decisions confirming the power of condominium associations to regulate the conduct of individual owners within the community, we believe that the No Smoking Bylaw would have been enforced if the merits of the Association's claims were decided. Further, the settlement agreement we reached had the effect of enforcing the No Smoking Bylaw, which bodes well for other associations that seek to limit smoking within its boundaries.

Jack Malley and Ken Jacobs are partners at Smith, Buss & Jacobs.

In February 2014, our client, a Westchester County condominium association (the “Association”), amended its bylaws to bar smoking everywhere on the condominium property, including inside individual units (the “No Smoking Bylaw”). One unit owner (“Defendant”) continued to smoke in his unit despite the Association's demands that he comply with the No Smoking Bylaw. The Association retained us to enforce its rights under the Bylaw.

A Condominium's Bylaws May Restrict Conduct Within Units

While New York courts had previously ruled that second-hand smoke could constitute a nuisance that could be enjoined in particular cases, no court had decided whether a condominium association had the right to bar smoking in units based purely on the authority of the bylaw. In fact, we found just one relevant decision nationally, a 2005 Colorado decision that upheld a condominium declaration amendment barring smoking in units.

Even though no prior decision had focused specifically on an Association's authority to restrict smoking within units, we found numerous examples of New York courts upholding condominium directives regulating other types of conduct within units to prevent unreasonable interference with other unit owners' use of their units and the common elements, e.g., Bd. of Managers of Vill. View Condo. v. Forman , 78 A.D.3d 627, 630, 911 N.Y.S.2d 378 (2d Dep't 2010), citing Real Property Law ' 339-v(1)(i).

Generally, courts have determined that when buyers choose to purchase a condominium unit, they subordinate certain rights that fee owners normally maintain to the interest of the group of unit owners who share common interests with them. Schoninger v. Yardarm Beach Homeowners Ass'n, Inc. , 134 A.D.2d 1, 6, 523 N.Y.S.2d 523 (2d Dep't 1987). Indeed, condominium associations frequently pass rules governing conduct within units that could affect others (such as requiring carpeting, imposing pet restrictions and limiting noise during certain hours). Therefore, a smoking restriction arguably falls into the same category as other blanket restrictions that (if violated) would inevitably disturb other condominium residents.

The Association's Valid Amendment of Its Bylaws

Under New York law, a condominium's bylaws can only be amended by a positive vote of at least 66.67% of the ownership interest. See Real Property Law ' 339-v(1)(j); see also Bd. of Managers of Vill. View Condo., 78 A.D.3d at 630. The process by which the Association passed the No Smoking Bylaw was beyond reproach. In late 2013, the board of managers (the “Board”) held a “town hall” informational meeting with unit owners to discuss the health risks caused by second-hand smoke within a multi-unit building. The overwhelming consensus of the unit owners favored amending the Association's bylaws to add a new provision that would make the condominium “smoke free” by prohibiting smoking in all areas inside and outside the building, including within individual units and on terraces. Subsequently, the Board called a formal meeting of unit owners to vote on the proposed No Smoking Bylaw. The amendment was approved by an affirmative vote of 82.19% of the ownership interest.

The Court Issues a TRO

We advised the Association that in our judgment, it would ultimately prevail in an action against the Defendant. The more pressing question was whether or not we could obtain a temporary restraining order (“TRO”) and preliminary injunction enjoining the Defendant from violating the No Smoking Bylaw while the case was pending. We were confident that we could prove likelihood of success on the merits with respect to the Association's breach of the No Smoking Bylaw and nuisance claims, as well as the balance of equities in the Association's favor. However, we did not want to rely upon specific evidence of nuisance to show “irreparable injury,” since that would invite the court to restrict its decision to this particular case rather than acknowledging the enforceability of the Bylaw.

We requested the court to take judicial notice of several government reports, most importantly two reports from the U.S. Surgeon General detailing the health risks caused by second-hand smoke. Among other things, the U.S. Surgeon General's reports concluded that exposure of adults to second-hand smoke has immediate adverse effects on the cardiovascular system, and causes coronary heart disease and lung cancer; second-hand smoke causes premature death and disease in children and in adults who do not smoke; and scientific evidence indicates that there is no risk-free level of exposure to second-hand smoke.

We also cited to engineering studies showing that given the design of modern multi-family buildings, it was impossible to prevent second-hand smoke from infiltrating into other units and common areas in a building. In addition, we submitted several affidavits from other unit owners verifying that they frequently smelled the smoke coming from the Defendant's unit.

We commenced our action in Supreme Court, Westchester County, and submitted our application for a TRO and preliminary injunction. The court granted our application for a TRO the next day without requiring oral argument.

Judge Recognizes the Likely Validity of the No-Smoking Bylaw

When we appeared in court on the Association's application for a preliminary injunction, counsel for the Defendant contended that the amendment was unfair because there was no smoking restriction in effect when the Defendant purchased his unit for $1.5 million, and the Defendant would not have bought it at that time if smoking had been barred in the building.

We argued that the amendment that added the No Smoking Bylaw was valid under New York law because it was approved by more than 66.67% of the ownership interest. We also emphasized that the deed by which the Defendant took title to his unit provides that he agreed to comply with all the terms of the bylaws “as ' they may be amended from time to time.” We further focused on the immediate risk of harm that unit owners would be subjected to if the Defendant did not comply with the No Smoking Bylaw.

Although the judge reserved a decision on the application, she expressed her initial view that the No-Smoking Bylaw was likely enforceable, and that the parties should look to settle the case. The judge then brokered a settlement set forth in a “So Ordered” Stipulation of Settlement in which the Defendant acknowledged that the No-Smoking Bylaw was valid and enforceable, and agreed to pay a sizeable portion of the Association's total fees.

Conclusion

Since the action was settled rather than formally decided, technically no precedent was created. However, based on the reaction of an informed and intelligent court to the arguments that were made, supported by the evidence in the reports from the U.S. Surgeon General and the precedential support of prior decisions confirming the power of condominium associations to regulate the conduct of individual owners within the community, we believe that the No Smoking Bylaw would have been enforced if the merits of the Association's claims were decided. Further, the settlement agreement we reached had the effect of enforcing the No Smoking Bylaw, which bodes well for other associations that seek to limit smoking within its boundaries.

Jack Malley and Ken Jacobs are partners at Smith, Buss & Jacobs.