Q: I’m a shareholder in a big co-op in Queens. The lease prohibits odors from touring from one residence to a different, however doesn’t embody a smoke-free coverage. My aged downstairs neighbor lives in a rent-stabilized residence and may now not go outdoors to smoke. My bed room smells like her ashtray, and I’ve been sleeping on my sofa. The co-op’s administration has despatched her discover after discover for 4 years, and lately reached a settlement together with her after threatening to convey an eviction case. They agreed that the proprietor of her residence would set up a industrial smoke abatement machine, nevertheless it’s been 10 weeks with no set up. What do I do now?
A: You need to be capable to dwell with out secondhand smoke, as described in your lease. Nonetheless, the co-op has made some effort to abate the smoke and your neighbor has protections in opposition to eviction as a rent-stabilized tenant — each of which work in opposition to your probabilities of success in housing courtroom.
“Nobody has a proper to let smoke emanate into your residence, however when it’s a rent-stabilized tenant, it makes it tougher to take authorized motion,” stated Lisa A. Smith, a companion who practices actual property legislation at Smith, Gambrell & Russell, LLP, in Manhattan.
You possibly can convey the co-op to courtroom, however it’s lined by the enterprise judgment rule, which protects co-op board actions which might be made in good religion, making a authorized declare tough. In the end, it’s the residence proprietor who’s liable for eliminating the odor.
Even when your constructing did have a no-smoking coverage, it seemingly wouldn’t assist your state of affairs if it have been enacted after your neighbor moved in. Hire-stabilized tenants sometimes benefit from the privileges they’d after they arrived within the constructing.
You may request that the co-op board rent an organization that administers smoke checks, which may decide how and the place the smoke is getting into your residence. The co-op must also achieve entry to your neighbor’s residence to carry out this take a look at and make any vital repairs.
Don’t hassle pressuring constructing administration to compel the set up of the smoke abatement gear, stated Adam Leitman Bailey, an actual property lawyer in Manhattan who has dealt with instances involving smoke odors. “That machine has by no means labored to unravel any case,” in his expertise, he stated.
Having your neighbor open her home windows whereas she smokes is one other potential answer, even in winter. “That is normally a November-through-end-of-April downside,” Mr. Bailey stated.
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