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Legal advice on HOA/co-op rules regarding smoking

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Posted by2 months ago

Legal advice on HOA/co-op rules regarding smoking

I’ve recently purchased a co-op in NYC. The HOA rules allow for smoking within the apartment as long as the smell does not enter the hallway or other apartments. My first violation was slid under my door in the form of a seemingly general letter restating the co-op rules regarding smoking due to the recent decriminalization of marijuana in NY. There was no indication of it being directed specifically to me, or that it was an official violation letter (do not recall a 1st offense notice on it) so I threw it out, not thinking it pertained directly to me. This was about two months ago.

I received the second notice on Monday. It stated that there were complaints about the smell of marijuana that violated the no smoking policy with a $50 fine attached. This letter was completely different from the supposed first notice: it had an official heading, directed to me specifically and indicating that this was my second notice. The signature of a representative of the corporation that owns the co-op was at the bottom of the letter.

The letter also indicated that if I did not cooperate (as in preventing the smell from leaving my apartment) legal action would be taken against me and I would be billed for the attorney costs.

Obviously I’m willing to comply. I don’t want to be that neighbor so I normally take precautions like leaving the windows open and lighting some candles while i smoke and after I smoke. No one has ever directly said something to me so part of the issue is I’m not exactly sure where the smell is leaking to (ie hallways or other apartments). Another issue is I’m not thrilled with the idea of not being able to smoke in the comfort of my home, especially in the dead of winter, when I pay all this money to simply exist here.

What legal advice do you have for this situation? Specifically regarding the legal action they’re threatening me with. What if its really not me and I deny that the smell is coming from my apartment? (How could something like that be verified?) How much could this cost if I were to violate this rule again? Would I need a lawyer?

TLDR; Received a 2nd violation of no smoking rule at HOA/co-op. Legal action has been threatened for the next violation. Would like to know what that may entail and what I can do to protect myself legally.

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Another issue is I’m not thrilled with the idea of not being able to smoke in the comfort of my home, especially in the dead of winter, when I pay all this money to simply exist here.

Your issue is your home is surrounded by other homes in the immediate vicinity, do you have central air in this apartment? That might be what's spreading the smoke around.

What legal advice do you have for this situation? Specifically regarding the legal action they’re threatening me with. What if its really not me and I deny that the smell is coming from my apartment? (How could something like that be verified?) How much could this cost if I were to violate this rule again? Would I need a lawyer?

Stop smoking in your apartment if you want a 100% solution. Your co-op has rules that should outline fines, and escalation for a 2nd infraction, etc. A lawyer is a waste of money most likely, the co-op agreement likely has a provision that allows them to put a lien on your property if its not paid so they will get you one way or another pretty much

31
level 2
Op · 2 mo. ago
level 1

Well, apparently the smell is entering other apartments, or nobody would know you were smoking, so the measures you are taking are apparently insufficient.

25
level 2
Op · 2 mo. ago
level 1

Review your association's violation/fine policy. Does the first notice you received meet the requirements outlined for a 1st violation warning notice?

You should request a hearing with the board to dispute the fine. You should ask to review a copy of all complaints received by the Board and make an argument against them. You should also dispute the validity of the "warning letter".

In the end, you should try to work out an agreement with the Board to waive the fees and allow for one more hearing if there is another complaint before taking legal action, and you should formally offer to open the window and light candles (as you said you already do) to show that you are playing ball and working towards the same goal.

But as u/401k1987 mentioned, not smoking in your unit is the only way that you can be sure to not break this rule as written. Therefor, I'd suggest seeing if there is anything you can do to change the way this rule is written.

After this issue dies down, you should talk to other members/shareholders and see if there are other smokers in the building. If you have enough support, you should petition to change the rule to be something along the lines of allowing for smoking within the apartment as long as the smell is not reported by 2 or more separate unit owners to have entered the hallway or other apartments. This way, it's less likely that someone with an over active sensitivity (or grudge) can abuse this rule to harass other members.

10
level 2
Op · 2 mo. ago

Thank you, this was really helpful advice.

I’m not sure I can change the policy, especially considering how frowned upon smoking marijuana is, but I will review the house rules and request more specific information about why I’m receiving these notices and move forward from there. I’m not denying that the smell doesn’t leak, but I would better be able to prevent it if I know who/where it was affecting.

Thanks again, I appreciate your advice.

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Comment removed by moderator · 2 mo. ago
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Created Oct 26, 2009