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.

Updated By , Attorney

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. (This article addresses tobacco smoke; for advice on dealing with marijuana smoke, see the Nolo articles on tenant rights to smoke marijuana in rentals and how to stop marijuana smoke from affecting your family.)

Does Your Lease or Rental Agreement Prohibit or Restrict Smoking?

As nonsmoking laws become more prevalent, more and more New York landlords are prohibiting smoking altogether or restricting smoking in their rental units.

If you're concerned with secondhand smoke at your rental, one of the first things you should do is check your lease or rental agreement for any no-smoking policy or smoking restrictions. Some cities and counties in New York—including New York City—require landlords to include their smoking policy in the lease. It's always a good idea to ask for any smoking policies in writing before you sign a lease or rental agreement, but you can ask your landlord for a written copy of the policies at any time. If your lease or rental agreement prohibits or restricts smoking, your landlord might be able to enforce the clause against the offending party.

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. Even if your landlord didn't mention the HOA's restrictions in your lease or rental agreement, you—as well as the other residents of the HOA—are bound by them. While you should contact your landlord first about the secondhand smoke problem, if your landlord isn't helpful, you can also contact the HOA's board for assistance with enforcing the smoking restrictions.

Has the Secondhand Smoke Become a Nuisance?

Even when your lease (or CC&Rs, if you're in an HOA) does not specifically address smoking, you might have another option to fight invasive secondhand smoke. Your lease or CC&Rs might contain a clause that prohibits residents from creating a nuisance—something that disturbs another's use or enjoyment of property. If the presence of secondhand smoke in your unit meets the legal definition of being a nuisance, you might be able to sue your neighbor or landlord to prohibit the activity and possibly collect damages for the harm you have suffered.

Check Federal and Local Nonsmoking Laws

Currently, there is no statewide law prohibiting smoking in private residential units in New York, such as apartments and condos. However, federal, city, or county laws might restrict or prohibit smoking in your rental property.

Federal Laws Prohibiting Smoking in Public Housing

The U.S. Department of Housing and Urban Development (HUD) has banned smoking in all public housing units and common areas, as well as outdoor areas up to 25 feet from buildings. If you live in housing covered by this ban, stopping the influx of secondhand smoke might be as straightforward as documenting the intrusion and filing a complaint with the property manager.

Local and University Smoking Laws

Many 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.

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 check if your university is smoke or tobacco free, visit the Tobacco Free College Campus Initiative.

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.

Talk to Your Landlord About Secondhand Smoke

The best first step to take when you're having problems with secondhand smoke in your rental property is to talk with your landlord. And, if other tenants are affected by secondhand smoke, see if they will join you in expressing concerns to the landlord. If applicable, explain the lease provisions or laws and ask your landlord to enforce them to get the offending neighbor to stop smoking. Even if there is no applicable lease provision or law, you could mention the fact that the secondhand smoke is a nuisance and health concern—your landlord might be willing to intervene in the situation.

How to Approach Your Landlord About Secondhand Smoke

Taking a non-confrontational approach with your landlord will likely work best—it's important to realize that your landlord might not even be aware of the problem. Detail your concerns about the secondhand smoke and how often you observe secondhand smoke in your unit. Point out the specific lease provision or law that prohibits or restricts smoking in your apartment building or condo complex (if any). 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.

You might feel more comfortable writing your landlord a letter or sending an email, rather than talking face-to-face—it's completely okay to put your concerns in writing, and it can be especially helpful to do so, as it creates a record of your concerns and efforts to resolve 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.

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, as the secondhand smoke poses a health risk to anyone who is exposed. Perhaps you can help your landlord establish a no-smoking policy in your apartment complex. Or, 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.

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, as well as state law, you might have the right to break your lease because of the health effects of 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 enjoy and use your rental. 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—and very thorough documentation of the problem and its effects—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 a New York small claims court. You can sue for up to $3,000 in in town or village courts or $5,000 in city courts. In New York City, you can sue for up to $10,000.

Remember that lawsuits like this can be costly, time consuming, and damaging to relationships. You should consider consulting with a lawyer to discuss your options and examine whether a lawsuit is worth the time and effort.

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