My neighbor smokes every 20 minutes, leaning out his window, which causes the smoke to come directly into my apartment. I asked him to smoke outside, but he was not receptive. What can I do?
Some New York apartment buildings have policies making them 100 percent smoke-free, but if you're not in one of those, you may need to have a chat with your neighbor, or ask your landlord to intervene, according to our experts.
If you're not in a smoke-free building there is no law prohibiting your neighbor from smoking in his own apartment. Smoking in building common areas, however, is against the law in buildings with 10 or more units. The city Health Department recommends that if smoke is coming into your apartment, you begin documenting the incidents, and then consider approaching your neighbor, your landlord, or both about the issue.
Unfortunately, the legal precedent isn't in your favor. In the case Ewen v Maccherone, appeals court judges ruled in favor of a condo owner who was smoking in his apartment.
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Living with noise—or bothersome and potentially toxic odors—can be physically and mentally debilitating. “If a nuisance becomes unbearable, you may need to take legal steps,” says New York City real estate lawyer Steven Wagner. “An attorney who knows what they are doing can find the leverage points of your situation. Sometimes, all it takes to find a solution is a letter from your lawyer.” To schedule a free 15 minute telephone consultation with Steven Wagner of Wagner Berkow & Brandt, click here or call 646-780-7272.
"They basically said, in an urban environment, if someone is engaging in a legal activity in their apartment, there's not much you can do about it," says Sam Himmelstein, a partner with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP (a Brick sponsor, FYI).
That said, your landlord does have an obligation to provide you with a habitable apartment, and you could argue that the smoking is impacting your apartment's habitability.
"The landlord could maybe take steps against the tenant," Himmelstein says, but he cautions that if you're a market-rate tenant, you may want to tread carefully: Even though New York has anti-retaliation laws, the landlord could opt not to renew your lease because of the headache you're creating.
For Deanna Kory, a broker with Corcoran, this is an ethical rather than a legal issue.
"Each person in their home or apartment has the right to live without the outside interference of another. And if someone is creating a problem that affects your quality of life in your apartment, then something has to be done to rectify the situation," she says.
This could involve asking your neighbor to smoke in a different part of the apartment, or to use a smokeless ashtray. The DOH suggests asking your landlord to fill in cracks in the walls that the smoke might come through, and check (and possibly update) the building's ventilation system. You could also invest in an air purifier.
The City Council recently passed a law requiring multifamily residential buildings to have smoking policies in place by August 2018, so perhaps you'll have some relief soon.
But the legislation is open-ended as to exactly what building owners must include in their policies. Still, Himmelstein anticipates that more buildings throughout the city will begin adopting no-smoking policies.
In the end, perhaps some positive re-framing of the issue is in order.
"A tenant leaning out the window to smoke is actually a little more considerate than most people, who just smoke in their apartments and then it penetrates the risers and floors," Himmelstein says.
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