Dealing with Secondhand Smoke in Your New York Home

Are you a New York tenant bothered by secondhand smoke in your apartment or condo? Learn your options here.

Every New York tenant knows that living in an apartment or condo complex is often challenging, especially when your neighbors’ actions interfere with your life in unpleasant ways. Along with  noisy neighbors,  secondhand smoke is increasingly becoming a common tenant complaint. Whether you have a respiratory problem such as asthma, are concerned about the  health effects of secondhand smoke  (especially if you have children at home), or simply don't like the smell of cigarette smoke wafting into your apartment, there are steps you can take to try to limit your neighbors' smoking or stop it altogether.

Depending on where you live in New York, the law may be on your side. Some cities and counties have placed restrictions on smoking in multi-unit residential properties, but most don’t. Regardless of where you call home in New York, you have some options for dealing with secondhand smoke, specifically cigarette smoke. For advice on dealing with marijuana smoke, see the Nolo articles on  stopping marijuana smoke from affecting your family  and special issues regarding  marijuana smoking in condo associations.

Check Your Lease or Rental Agreement

As nonsmoking laws become more prevalent (such as in the  workplace—see  N.Y. Pub. Health Law § § 1399-n to 1399-x;  N.Y. Lab. Law § 201-d(2b)(6)), more and more New York landlords are prohibiting smoking altogether or restricting smoking in their rental units. If your complex includes a play area for children, then the landlord is required by law to prohibit smoking within the playground area whenever any child under the age of 12 is present (see  N.Y. Pub. Health Law § 1399-o-1).

If you're concerned with secondhand smoking, one of the first things you should do is  check your lease  regarding smoking policies. Some cities and counties (such as the  City of Buffalo  and the  County of Rockland) in New York require landlords to include their smoking policy in the lease, so if it’s not there, be sure to ask for the policy in writing. (Ideally, you will have done this before signing a lease, especially if you or someone in your family is particularly sensitive to secondhand smoke.)

If you live in a condo, you should also check with your homeowners’ association (HOA) to see if there are smoking restrictions for your building or common areas. Be sure to also look at provisions in the lease (or  CC&Rs, if an HOA) that deal with  nuisances, as secondhand smoke can be considered a legal nuisance in some situations.

Check Local Nonsmoking Laws

Currently, there is no statewide law prohibiting smoking in private residential units in New York, such as apartments and condos. However, some cities and counties have laws restricting smoking in certain areas. For example, New York City adopted the  Smoke-Free Air Act of 2002, which prohibits smoking in lobbies and hallways, stairwells and elevators, and other common areas in multi-unit residential buildings with ten or more units.

If you live in public housing or university housing, you are more likely to have laws that restrict or prohibit smoking in your apartment or common areas. Many New York cities (such as  Albany  and  Syracuse) and large counties (such as Putnam County) have adopted smoke-free policies for public housing. Likewise, many New York universities have also adopted smoke-free policies, including  New York University,  City University of New York (all campuses), and  State University of New York.

To see if your city or county has a law prohibiting or restricting smoking in private or public residences, visit the  American Nonsmokers’ Rights Foundation; this organization also has extensive  resources for tenants concerned with secondhand smoke  (as well as information on  e-cigarettes and vaping).  Smoke Free Housing NY  also has resources for tenants throughout the state. To check if your university is smoke or tobacco free, visit the  Tobacco Free College Campus Initiative.

Talk to Your Landlord

If you have found that either your lease or a local law prohibits or restricts smoking in rental units, you should first try talking to your landlord about the situation. If other tenants are affected by secondhand smoke, see if they will join you in expressing concerns to the landlord. You should explain the lease provisions or laws and ask your landlord to enforce them to get the offending neighbor to stop smoking. You may feel more comfortable writing your landlord a letter or sending an email, rather than talking face-to-face. Putting your research in writing and asking for reasonable solutions can often be effective in solving the problem. Keep copies of all letters, emails, or notes of meetings with your landlord in case you need them for any future legal actions.

Remember to be respectful in your communications with your landlord. Detail your concerns and the problems you have been having with the secondhand smoke, and point out the specific lease provision or law that prohibits or restricts smoking in your apartment building or condo complex. Provide some potential solutions to the problem (such as fixing cracks in the walls or repairing faulty vents that allow smoke to drift into your home from a neighboring apartment). Be sure to leave your contact information so the landlord can discuss the matter with you further.

Even if you have not found a lease provision or local law that prohibits or restricts smoking on the rental property, you (and any other concerned tenants) should still try to talk to your landlord, especially if your health (or another family member's) is at risk from secondhand smoking. Perhaps you can help your landlord establish a smoking policy in your apartment complex. You might be able to come up with a reasonable compromise, such as restricting smoking to certain areas. The American Lung Association has lots of useful information to help support your case; see, for example,  Smokefree Policies in Multi-Unit Housing - Steps for Success.

Your Legal Options When It Comes to Secondhand Smoking

If you can't reach a solution with your landlord and the secondhand smoke is disrupting your life or affecting your health, then you might consider moving out. Depending on the situation, you may have the right to  break your lease  because of the health effects of the secondhand smoking.

Depending on the severity of the problem, you may even want to consider bringing a lawsuit against the rental property owner. You might be able to claim that the secondhand smoke constitutes a nuisance or disrupts your right to  quiet enjoyment  of the rental unit. Even though several New York courts have ruled that secondhand smoke is a nuisance or violates the  implied warranty of habitability  (such as  Poyck v. Bryant, 13 Misc. 3d 699, New York City Civil Court (2006)), keep in mind that these cases will likely be difficult to win without laws supporting your side.

If you want to sue for money damages only (such as for dry cleaning or medical bills related to the secondhand smoke), you could consider bringing a lawsuit in  small claims court. In New York, you can sue for up to $3,000 in in town or village courts or $5,000 in city courts.

Remember that lawsuits like this can be costly, time consuming, and damaging to relationships. You should consult a lawyer before making the decision to sue and consider whether bringing the lawsuit is worth the trouble.

E-Cigarettes

E-cigarettes are personal vaporizers that use liquid nicotine, or other liquids and oils, which are inhaled by the user. The practice of using e-cigarettes is often referred to as vaping. Under the  New York City Smoke-Free Air Act, e-cigarettes are prohibited in any location where smoking is prohibited. However, e-cigarettes  are not considered tobacco products  under any state statutes and are therefore not subject to the same nonsmoking laws for the rest of the state.

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