PAGE 4 - IMPACT - NOVEMBER 2006 What a Co-op, Condo or Can Do About Smokers

COUNSELS’ restriction as to smoking in their few provisions as those cited leases. For Cooperatives and heretofore in the proprietary CORNER: the call to ac- leases of cooperatives. By: Kenneth J. Finger, tion may be much more com- Carl L. Finger and plex and may require amend- A Review Daniel S. Finger, ing the proprietary lease (Co- However, New York State Finger & Finger, Chief Counsel, operatives) or by-/declara- § 339-v 1 Building & Realty Institute (BRI) tion (). should be reviewed: As to Cooperatives, the pro- “The by-laws shall provide prietary lease will most likely for at least the following: (i) WHITE PLAINS – In a recent The Court, given that finding, lord “could have asked the dictate what, if anything, can Such restrictions on and re- decision a judge has allowed a held that it “must look to the board of managers to stop the be done about a shareholder quirements respecting the use tenant to assert a warrant of operative facts to determine neighbors from smoking in the smoking in an apartment and and maintenance of the units defense, in an ac- whether or not the secondhand hallway and elevator as well to smoke emanating from the and the use of the common el- tion seeking payment of rent, smoke was so pervasive as to take preventive care to properly smoker’s apartment into other ements, not set forth in the based on the second-hand actually breach the implied ventilate [the smoker’s apart- apartments. declaration, as are designed to smoke emanating from a warranty of habitability and/or ment] so that the secondhand Many proprietary leases prevent unreasonable interfer- neighbors apartment into the cause a constructive eviction.” smoke did not seep into the contain a section which states ence with the use of their re- complaining tenant’s apart- The facts of the instant mat- [tenant’s] apartment.” that “The Lessee shall not per- spective units and of the com- ment. Poyck v. Bryant. 33752 ter were reviewed and require The Court pointed out further mit or suffer any unreasonable mon elements by the several CVN 2002--, NYLJ, Sept. 1, notation herein. The Landlord that the Board of Managers noises or anything which will unit owners. 2006, p. 22, col. 1 (Civ. Ct. N.Y. was the owner of a condo- had an obligation to “prevent interfere with the rights of other ‘The suggestion would be Co.). minium who had rented the unreasonable interference with lessees or unreasonably an- that based on the relevant por- In a first impression case the unit to the tenants. The tenants the use of respective units and noy them.” tion of the by-laws, the smok- Court reviewed the applicable had lived in the apartment for of the common elements by Although not specifically di- ing party was unreasonably in- law, the current state of “urban approximately three years several unit owners” and could rected at second-hand smoke terfering with the use of the dwelling,” and went so far as to when a neighbor moved in next have commenced an action and although there are virtually units by other unit owners. The reference the “Golden Rule.” door who smoked constantly seeking injunctive relief no reported cases applying remedy in a condominium The warranty of habitability is and incessantly. The tenants against the smoking residents such sections to same, this would also be somewhat more codified in Real wrote to the Landlord and ad- and/or the posting of a bond to section would seem to be ap- attenuated than the termina- §235-b. The Court referenced vised him of the problem. They insure compliance with the by- propriate fodder for addressing tion of the proprietary lease. the significant case of Park also spoke to the superinten- laws and decisions of the a complaint as to second-hand New York State Real Property West Management Corp. v. dent of the building. Board of Managers. smoke. Law §339-j allows for the con- Mitchell, 47 NY2d 316 (1979), They attempted to remedy A Hearing Additionally, most propri- dominium to maintain an action and found that “in every land- the situation themselves by etary leases contain a provision for injunctive relief and in the lord-tenant relationship where sealing the apartment door The Court thereafter re- allowing for the termination of case of repeated violations the the landlord impliedly warrants the lease on the basis of objec- condominium may seek the as follows: first, that the pre- tionable conduct repeated after posting of “sufficient surety” for mises are fit for human habita- “Boards of Managers, Boards of Directors and notice. Certainly, the defining of future compliance. tion, second that the condition Apartment Owners should all be on notice that smoking as “objectionable con- Actually evicting someone in of the premises is in accord duct” has not been placed be- a condominium is quite prob- with the uses reasonably in- complaints about second-hand smoke must fore courts to date. However, lematical. tended by the parties; and be dealt with seriously, as second-hand smoke with the adoption of appropriate Regardless of the precise third, that the tenants are not can cause a constructive eviction which may procedures this may also prove process or remedy appurte- subjected to any conditions en- an effect tool. nant to the cooperative and its dangering or detrimental to be upheld by the Courts.” proprietary lease or the condo- their life, health or safety. Park The Condo Scenario minium and its by-laws, or the West Management Corp. v. with weather stripping but the quired a hearing on the issues Condominiums by their na- lease in a rental apartment, Mitchell, at 326.” smoke continued to permeate of the warranty of habitability ture invite a more complicated Boards of Managers, Boards Additional Findings the apartment. The Landlord and constructive eviction, but solution and do not face the of Directors, and Apartment evidently took no action and the fact that the Court allowed same issue. Owners should all be on notice The Court went on to find the tenants subsequently ad- the defenses to stand and be As the Court in Poyk recog- that complaints about second- that odors, fumes, noise, water vised him that they needed to litigated gives weight to their vi- nized the warrant of habitability hand smoke must be dealt with and dust all may constitute vio- move as a result of the health ability when the basis is sec- defense does not apply in a seriously as second-hand lations of the issues appurtenant to second ond-hand smoke. This finding condominium (against the smoke can cause a construc- of habitability. The Court spe- hand smoke. is significant. Given the lan- Condominium), but it nonethe- tive eviction which may be up- cifically found in comparison, The tenants moved and the guage and the findings of fact less implied that the Landlord held by the Courts. that “as a matter of law that landlord brought an action to required to be made it remains and the Condominium could Editor’s Note: The authors secondhand smoke qualifies collect the unpaid rents accru- to be seen whether the tenants take some action when faced are attorneys with Finger and as a condition that invokes the ing under the lease. The ten- will prevail. with complaints of second- Finger, A Professional Corpo- protections of RPL §235-b un- ants raised the warranty of hab- Nonetheless this case must hand smoke. ration. The firm is based in der the proper circumstances. itability defense and the Land- serve as a wake up call for Because the resident owns White Plains. Kenneth J Fin- As such it is axiomatic that sec- lord responded that he could those faced with complaints as the unit, there is no lease to ger is chief counsel to the ond-hand smoke can be not be held responsible for the to second-hand smoke. rely upon. A review of many Building and Realty Institute grounds for a constructive actions of third parties. The For current it may condominium by-laws indi- of Westchester and the Mid- eviction.” Court pointed out that the Land- simply behoove them to place a cates that there are most likely Hudson Region (BRI). Report: Home Prices Flat or Falling in Rockland, Orange Counties

WHITE PLAINS – The housing will just go flat. The demand is while some parts of the entry- the third quarter of 2005. In- still at historic lows, so I don’t markets in Orange and Rock- clearly there just below the sur- level market remain robust. ventories rose, with 1,558 see any reason to expect land counties entered a period face to purchase property The median price for a con- homes on the market with MLS prices to fall dramatically,” said of adjustment this summer, when it meets the buyer’s pric- dominium in Orange County, members as of Sept. 30, an in- Rand. “We’re returning to a with flat or falling prices being ing needs.” Rand noted, rose 6.4 percent crease of 40.4 percent above normal market and I think seen in areas where values The median price of a single to $234,000 this summer from last year’s level of 1,110. prices will remain relatively un- had doubled during the previ- family house in Rockland $219,950 in the third quarter of In Orange County, 892 changed for the near future.” ous three-to-five years, ac- County fell 3.8 percent during 2005. But just across the bor- single family homes were sold Prudential Rand Realty, cording to third-quarter statis- the third quarter to $510,000 der in Rockland County the during the third quarter, down founded in 1984, is the largest tics analyzed by Prudential from $529,950 a year earlier, median price for a condo fell 19.7 percent from 1,111 during brokerage in the Rand Realty. according to figures from the 7.9 percent to $285,493. the summer of 2005. The year- Greater Hudson Valley with 21 The market is going through Greater Hudson Valley Multiple MLS members sold fewer to-date average days on the offices in Westchester, Rock- a transition from a “seller’s mar- Listing Service. The median single family homes in Rock- market was 98 at the end of the land, Orange and Sullivan ket” to a “buyer’s market,” said price in Orange County was land County this summer, with 2006 period, up from 86 a year counties, the company said. Matt Rand, managing partner unchanged at $325,000. 459 deals closed, down 20.3 before, and the number of Based on market share, Rand with Prudential Rand Realty. percent from 576 a year ago. homes listed for sale rose to is the top real estate company “It’s a healthy thing,” Rand Other Trends Single family houses also took 3,274, up 18.9 percent from in Rockland, first in Orange said. “Some markets will give High-end sales have slowed longer to sell, with the year-to- 2,753 on Sept. 30, 2005. and third in Westchester. The back a correction of five per- the most and shown the most date average days on the mar- “The region’s economy is company has more than 700 cent to 10 percent and some pressure on prices, Rand said, ket rising to 85 days from 63 in strong and interest rates are sales associates, officials said.