New York's Cooperative and Condominium Community

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The Problem With Weed

Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors. My guest is Tracy Peterson, a partner at the law firm Braverman Greenspun. There is probably no more difficult task for a board than having to deal with the bad behavior of residents and complaints between neighbors.
Nuisances take on all shapes and sizes, but one that boards are increasingly grappling with these days is smoking. Tracy, you've been dealing with a couple such headaches lately. Can you tell us about them?
Tracy Peterson: Sure. In the examples that I'm gonna share with you are in the condominium context. In the cooperative context, it's a different ball of wax.
In the cooperative context, you've got the warranty of habitability that governs the scenario, whereas in a condominium context, most often the bylaw provision that governs is the nuisance provision. This is found in most standard condominium bylaws, and it provides that unit owners and occupants are precluded, prohibited from creating any kind of nuisance or engaging in any conduct that interferes with the peaceful use and possession of the property by other occupants.
So oftentimes smoke and smoke odors falls under this nuisance provision, this prohibition against nuisances. And that's the provision that is invoked by boards when it opts to enter into the fray and address complaints about smoke and smoke odors. And I was very specific when I say when the board opts to enter into the fray because it's not necessarily a given that a board will do so. When you have a scenario where you have multiple occupants or even staff members who are complaining about smoke odor or smoke emanating from a unit, it's more likely that a board will opt to get involved versus a scenario where it's only one unit owner, one occupant, who's making the complaint.
In the cases that I've been involved with, there was one, this dates back a few years now from a condo on the Upper West side where there was an occupant in one of the units that was just smoking marijuana all the time, and the odors and the smoke itself was permeating into other apartments, into common areas, and even into the office used by the onsite managing agent.
And it was causing certain staff members and certain apartment occupants to have headaches and to feel unwell. And in this instance the complaints were logged and documented very well, so that when it came time to pursue the complaints, the condominium was in good standing.
First, we sent some cease and desist letters to the owner of the unit where the smoke was coming from, and when those cease and desist letters didn't do the trick, we threatened litigation. And then when that didn't do the trick, we actually started litigation. Starting litigation didn't do the trick, and we sought a preliminary injunction enjoining the occupant from allowing the smoke odors to permeate beyond the four walls of the apartment.
We were, we actually were granted the preliminary injunctive order, which was great, except for the fact that it didn't do the trick of causing the odors and the smoke to cease. So then we were constrained to go back to court and seek a contempt order as well as a permanent injunction. And in that case, we were successful on both counts and the reason that we were successful in getting the preliminary injunction, the permanent injunction and the contempt order is because we had everything very well documented. We had all the logs kept in the normal course of business, of all of the complaints from the owners, the occupants, staff members.
We had staff members and occupants who were willing to provide affidavits detailing the dates and times when they experienced the smoke odors and the complaints that they lodged, et cetera. In another condominium building where there were multiple complaints about marijuana smoke odors coming from one apartment, we were less lucky.
We went through the same process of sending cease and desist letters to the owner and the occupant of the unit; didn't do the trick. We went ahead and commenced litigation, didn't do the trick. We moved for a preliminary injunction order and we were granted the preliminary injunction. In this case it just so happened that the defendants didn't put in opposition, so the preliminary injunction order was granted on default.
Thereafter there was, we were able to resolve the case in its entirety with a settlement agreement that effectively put the apartment occupant on probation; gave her a period during which she promised that she wouldn't allow the marijuana smoke odors to escape the four walls of her apartment. And it gave the board the authority to pursue contempt sanctions if it received complaints from building occupants about smoke odors during this probation period; if the board investigated those complaints and found them to be, to have merit. There were unfortunately violations of the settlement agreement, and the board opted to pursue contempt sanctions against the occupant of the apartment. But here, unlike in the first case that I was talking about, the, we didn't have the documentation and the testimony that we did in the first case. Although that there were multiple witnesses to the smoke and the smoke odors in the form of other building occupants and staff members. No one was willing to come forward and testify against this, this building occupant outta fear and outta fear of retaliation, and for a host of reasons. And because we didn't have individuals who were willing to step forward and offer their affidavits or testimony, the board did not get the contempt sanctions and has had its hands tied in being able to enforce these, the anti nuisance provision in its bylaws. And I think it's also worth mentioning that in this second scenario, the bylaws are somewhat unusual in that there is not a provision in the bylaws that allows the condominium to recover its attorney's fees incurred in connection with pursuing violations of the governing documents.
So not only did the condominium not get the relief that it wanted long term, it also was unable to recover the attorney's fees that it spent in successfully pursuing the preliminary injunction. So one thing, among the things that a board ought to consider before determining whether it is going to jump into the fray and insert itself into these nuisance disputes should also be whether or not there is a provision that allows it to recoup its legal fees if in fact it is successful in pursuing the nuisance.
Of course, even more importantly, because it's the substantive portion of it, is to make sure that it has the evidence and the witnesses available to support the nuisance claims, improve the nuisance claims.
Paula Chin: Now, let's say in the first case when you said it was, they were successful, when you say to go back against a unit owner for contempt.
What is the stick there? What is the unit owner actually threatened with in that case? If you go after them for contempt?
Tracy Peterson: Sure. The truth is that the sanction is generally limited to a monetary sanction, and it's usually the legal fees incurred in pursuing the contempt, in proving the violation of the preliminary injunctive order.
It's not a huge heavy stick, but it often just the idea of being held officially in contempt of court generally is enough to cause the conduct to cease.
Paula Chin: And that's what happened in the first building, correct?
Tracy Peterson: That, yes, correct.
Paula Chin: It actually ceased and there was no more, smoke or odors or whatever getting outside of the building.
And in the second case, that, they did not have that stick because-- now is, and again, so should a board, if it does not have that in its governing documents, that it is entitled to recoup legal fees, should that change, should they change it? Is that something the steps that they should, boards should all immediately take?
Tracy Peterson: Look, I think as a general rule out, even outside of the nuisance context, I think any condominium that doesn't have an attorney fee provision in its bylaws should consider amending its bylaws to include it.
Paula Chin: Okay. And I know you talked about the difference between co-ops and condos. Are condos in more of a difficult spot or are co-ops when it comes to, let's just stick to smoking complaints?
Tracy Peterson: Sure. It's, it is difficult to say whether better or worse. It's different in the sense that a co-op board is obliged to step in when you have an occupant who's claiming that smoke odors, for example, are rendering an apartment uninhabitable, right? Because that invokes the warranty of habitability.
And so in that case, the board doesn't have a choice. That's, is true whether or not it has the documentation to support a claim going forward and whether or not there is that provision in the proprietary lease that allows for recovery of legal fees.
Paula Chin: And would you advise boards, for example, you're faced with this nuisance, you cannot get, for example, the affidavits or the support from staff and or other residents that you would like, should you still take action?
Tracy Peterson: So if in the condominium context, I mean it, it becomes a business decision. Sometimes the political benefits of pursuing the nuisance outweigh any potential financial burden associated with pursuing it. It's not always a cut and dried decision.
Paula Chin: Okay. And what do you think is the takeaway here, Tracy? I know it's, you said there are a lot of nuances, but if you could boil it down, what would it be?
Tracy Peterson: Sure. Documentation, I think, and again, not just in the nuisance context, but generally speaking, for there to be just consistent record keeping. In buildings for of, whether it be about unit owner or shareholder complaints or packages or whatever it is, but to have the record keeping in place so that when it, the time does come that an issue needs to be pursued, it's just a matter of saying, ah, yes, just need to pull that up from this file. We know it's there.
Paula Chin: And just a kind of an update question. Now that, of course, marijuana smoking is legal, or say, let's say the person though is claiming that it's medical for medical usage, not recreational. Do boards have to tread more carefully?
Do you have a weaker case, or does that really not matter in that the person is entitled, obviously, to medical marijuana, but it can impose upon other? Is that where
the line gets gone?
Tracy Peterson: That's exactly right, Paula. So you know it. Nobody, in none of these instances is the board saying you can't smoke marijuana in your apartment.
They're saying if you're gonna do it, you gotta do it in a way that doesn't disturb other occupants. And if it's medical usage and there's no way to prevent the smoke from permeating beyond the four walls of your unit, then perhaps consider a gummy. Consider.
Paula Chin: There are alternatives. That's right.
Oh Tracy, this has been really informative and really topical. Thank you so much for joining us today.
Tracy Peterson: Sure. My pleasure.

Tracy Peterson, Partner, Braverman Greenspun

Crossing the line. Boards don’t always opt to enter the fray when there are complaints about smoke emanating from apartments, but when multiple owners or even staff complain, they will. That was the situation at an Upper West Side condo, where an occupant was smoking marijuana all the time and the smoke and odors was permeating into other apartments, the common areas and even into the onsite managing agent’s office, causing people to have headaches and feel unwell. 

A war of escalation. Sending cease-and-desist letters to the occupant and then threatening litigation didn’t work, so we sought, and won, a preliminary injunction. This stopped the marijuana smoking for some time, but then it started up again. We went back to court and sought a contempt order and a permanent injunction, which we won. The reason for success was because we had affidavits from unit-owners and staff detailing the dates and times when they experienced smoke and odors. 

We were less fortunate at another condo dealing with a similar situation. After winning a preliminary injunction against the smoker, we were able to negotiate a settlement agreement in which she promised not to allow marijuana smoke to escape her apartment, which she then violated. In this case no one was willing to testify against her and the board wasn’t granted a contempt order. Its hands were tied. To add insult to injury, the condo’s bylaws didn’t allow for the recovery of attorney fees incurred when pursuing violations of the governing documents.

Lesson learned. Before inserting itself into any nuisance disputes, boards should not only have witnesses and evidence, but also have a provision that allows them to recoup legal fees if they are successful in court. Sometimes, though, the benefits of pursuing a case outweigh the potential financial burden of going to court. It's not always a cut-and-dry decision.

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