Butt Out? Giveand Take is Helpful in Dealing with Smokers

 In the ongoing effort to limit the non-smoking public's exposure to second-hand  cigarette smoke, municipal governments across the country are coming up with  increasingly strict bans on smoking in public places—even on public streets and in parks in some communities. Perhaps not  surprisingly, more and more condominium associations are following suit.  

 “There are a handful of smoke-free multifamily buildings that we know of in New  Jersey,” says Karen Blumenfeld, executive director of the Summit-based Global Advisors  for Smokefree Policy (GASP). “There is no tracking mechanism for us other than when a condo association member  contacts us seeking assistance for creating a smoke-free policy in their bylaws  of rules, so we find out about the policies of the community through members of  the association. We get many calls from multi-unit housing residents that are  seeking to have a smoke-free policy in their building. There are a handful of  smoke-free co-ops and condos in New Jersey that we know about. Nationally there  is a big movement to be smoke-free.”  

 The surge of aversion to smoking is largely a reflection of changing attitudes  towards the habit. About 20 percent of the population nationwide consider  themselves smokers and growing numbers of non-smokers are concerned about the  health hazards of exposure to second-hand smoke. A 2006 Surgeon General’s report concluded that: “There is no risk-free level of exposure to second-hand smoke” and that, staggeringly, secondhand smoke kills at least 65,000 people a year in  the United States who do not smoke.  

 The New Jersey Smoke-Free Air Act was passed by the New Jersey Legislature and  signed by then-Governor Jon Corzine in 2006. The Act prohibits smoking in any  indoor public place and workplace including common areas like hallways,  lobbies, stairwells and private residences. The Act exempts city parks, cigar  bars, restaurants, hospitals and psychiatric facilities. Local governments may  regulate smoking more stringently than the Act. Violations can result in fines  ranging from $250 to $1,000, depending how many violations one has incurred  within a year.  

 According to 2010 statistics from the Centers for Disease Control and  Prevention, about 14.9 percent of New Jersey’s adult population—equivalent to 980,000 individuals—currently smoke. The prevalence of cigarette smoking nationally ranges from 9.3  percent to 26.5 percent. New Jersey ranks third among those states.  

 Blowing Smoke

 Given the groundswell of opposition to smoking in most communities, real estate  insiders and legal experts point out that it is possible to prohibit smoking  throughout a condo property—even, within each unit, but it would require a change in the bylaws.  

 According to the Newark Star Ledger, in 2004 a homeowner association in Mendham  Township voted 9–2 (one owner was absent) to ban smoking in the 12-unit Mendham Knolls condo complex’s common areas, outside areas and within each unit. The bylaws were amended after a unit owner claimed the stench from his downstairs neighbor's cigarette smoke wafted upstairs into his apartment and was so overpowering that it woke him up in the middle of the night and would cause his throat to become hoarse. The secondhand smoke was also the source of anxiety for the upstairs resident. And in a second instance, the Star Ledger also noted that the Bellmawr Senior  Housing Association acted in 2010 to prohibit smoking in its two building,  130-unit complex. The no-smoking policy came into effect when new people moved  in or leases came up for renewal.  

 “If a condominium/cooperative wishes to institute a smoking ban, the community  association should attempt to amend its bylaws or governing documents,” says Hubert C. Cutolo, a partner with Cutolo Mandel, LLC, a law firm with  offices in Manalapan, Morristown and Newark. “An amendment, which is voted on by the unit owners is more likely to be upheld  in court than a regulation adopted by the board. Of course a bylaw amendment is  more difficult to obtain since it typically requires a vote of the unit owners  and often requires the agreement of two-thirds or three-quarters of the owners.  It bears emphasis that boards usually have more limited power to regulate the  behavior of the owners on the inside of their units.”  

 Impact on Market Value?

 Some condominium owners and developers worry that a smoking ban could diminish  the number of prospective buyers for their units while there are owners that  view a no-smoking restriction as an enhancement of the property.  

 “Smoking devalues property,” says Blumenfeld. “There is a lot that goes into rehabbing a multi-unit housing space if there is  secondhand smoke. That’s what people initially smell, and then there’s thirdhand smoke that sticks to the surfaces in an apartment. It's in the  furniture and in the walls, or the carpeting and there are toxins that continue  to gas off. There is also the cost of having to replace air conditioning and  other ventilation filters. If smoking is permitted, they have to be changed  more frequently and it’s more costly and all unit owners share in that cost. When you damage property,  it decreases the value. So there’s not only the health benefit of having a smoke-free home, there’s also an economic benefit as well.”  

 Thomas Chilenski, CMCA, president and senior property director of Cedarcrest  Property Management in Fairfield, agrees with Blumenfeld. “It’s my personal opinion that smoking bans help increase the market value of a  property,” he says. “The advantages of managing a smoke-free building are many happy residents.  Smokers are very much in the minority, and cause many problems for their  neighbors especially during the colder months if they smoke a lot inside their  unit as the stench invariably seeps through ceilings/walls/vents/doors into  other units and common areas. Another benefit of a ban is safety, because  there's less chance of an accidental fire being set. I don’t know of any cons, except from a smoker's point of view,” says Chilenski.  

 “We are unaware of any empirical data or studies, which would indicate that the  implementation of a smoking ban would detrimentally affect real estate values,” says Cutolo. “Notwithstanding the lack of empirical data or studies, one could opine that a  smoking ban may actually increase the value of a unit. Unit owners could ensure  that they would not be subjected to ‘secondhand smoke’ emanating from adjoining units that would affect the quiet enjoyment of their  property.”  

 That being said, most real estate experts agree that developers' main interest  is to sell units, so they are less likely to impose restrictions that might  possibly prevent them from getting a unit sold, especially given the large  proportion of buyers from overseas who may or may not have differing views on  smoking, or the ability to smoke in their unit.  

 Up in Smoke

 All of which is to say, smokers and non-smokers living side-by-side in harmony  can be a tough balancing act for boards and managers.  

 “It’s very difficult to find a compromise unless units are sealed off completely,  and there’s no chance of smoke coming into a common area,” says Blumenfeld. “If someone is smoking in a hermetically-sealed unit and the door opens up, the  smoke pours out into the hallway or if someone is smoking on their balcony, the  smoke is going to waft into the neighbor’s balcony. We’ve discovered cases where smoke was coming from the floor boards or electrical  outlets because the secondhand smoke would be trapped in between the wall  spaces or the floor and ceiling spaces. So it’s very difficult to have a 100 percent smoke-free environment if you have  smoking allowed in it.”  

 As smoking bans become increasingly common, many smokers are finding that the  last place they can puff away freely is at home. Perhaps not for long if home  is a condominium. “We have seen sponsors throughout New Jersey recently creating non-smoking  buildings,” says Cutolo. “There are no published cases in New Jersey that directly address smoking within  the condominium/cooperative context.”  

 The battle between smoking and non-smoking condominium residents isn’t new, but as complaints about secondhand smoke increase and the evidence of its  dangers prove more damning, some conflicts are now being hashed out in court,  with the courts being more inclined to weigh to the rights of homeowners to  breathe in clean air in their homes, but courts do not easily or happily  restrict private property rights.  

 For managers of multi-unit buildings, smoking has always been a headache but  complaints in recent years have increased. “Smoking has always been an issue for property managers,” says Chilenski, “At least for the last decade, with smoking becoming banned in many/all public  places and now most parks.”  

 “Smoke-free multi-unit housing is an emerging trend,” says Blumenfeld. “For years we’ve gotten calls from residents that are dealing with secondhand smoke that’s entering their home. In the last few years there’s been an increase in the trend. I think it’s because it affords you a healthy lifestyle, and because many residents may  have health conditions that requires that they not be exposed to the  carcinogens of secondhand smoke.”  

 Marie Auger is a Massachusetts-based freelance writer and a frequent contributor  to The New Jersey Cooperator. Staff writer Christy Smith-Sloman contributed to this article.


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