Q: I live on the top floor of a seven-story Manhattan co-op, with windows facing the back of the building. The first-floor rear shareholders have decks outside their apartments. Frequently, the smell of marijuana enters my apartment, either from people using their decks or from people with open windows. The odor is noxious, but I often keep my windows open because the apartment overheats if the windows are closed, no matter what the season. Can the co-op restrict the use of marijuana so the fumes do not reach other apartments?
A: Even if you do not live in a smoke-free building, the co-op board may have the authority to regulate what happens on the building’s balconies, decks and patios. But when considering new rules, it also has to balance your concerns with your neighbors’ desire to enjoy their outdoor space.
Some buildings have amended their rules “to prohibit smoking on terraces for this precise reason, because it goes into somebody else’s window,” said Steven D. Sladkus, a Manhattan real estate lawyer who has seen this issue come up with cigar smoke.
Mr. Sladkus likens such a rule to the way boards often limit the furnishings you put on a roof deck or balcony. A board might ban heavy planters because they could damage the integrity of the roof, or they might regulate what types of chairs and tables you use outside because a light one could become airborne in a strong wind and harm someone.
But unlike a piece of furniture, which everyone can see all the time, smoke is, well, smoke. The board would need to investigate your claim. It could be difficult to prove that your neighbors are the ones responsible for the odor. You live in a city, and smoke and other odors can travel from the street. How do you prove that someone is opening their window and blowing smoke that smoke is entering your apartment? As for the outdoor smoking, your apartment is a distance from the first floor. “In this particular case, seven floors up seems pretty tenuous,” Mr. Sladkus said.
Before the board makes a rule that impacts how residents enjoy their outdoor space, it needs to investigate the claim and make sure that it’s legitimate. “Is it really, really warranted?” Mr. Sladkus said. “People have outdoor terraces for a reason — to enjoy the outdoors.”
The onus is on you to provide evidence that they can investigate. Make a video that shows the smoke drifting through your windows. Ask other neighbors if they’re bothered by the smoke, too, particularly ones who live on lower floors. If this issue is widespread, impacting multiple apartments, you might have a stronger case.
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