Real Estate Q&A: Unwanted Water and Smoke

Q. The board of my co-op recently amended the house rules to prohibit smoking inside a resident shareholder’s apartment, even if they have been living there for years. It has threatened people with eviction if they continue to smoke. Is this legal?

Long Island City, Queens

A. Take a long, deep drag on that cigarette: It is unlikely that the board can evict you for your habit just by changing the house rules, according to Pierre Debbas, a real estate lawyer. (If they changed the proprietary lease, which requires a shareholder vote, that would be a different story, and you could be thrown out if you didn’t comply.)

But you might want to take this opportunity to do your neighbors a public-health service and comply, as secondhand smoke has been known to damage the health of nonsmokers. Depending on the ventilation system, smoke can travel from one unit to another.

“He might view it as an encroachment of his rights to life, liberty and his pursuit of happiness,” said Lynn M. Tepper, a clinical professor at Columbia University Health Sciences Campus. “But you could also interpret it as the rights of other people to remain healthy and smoke-free.”

But, if you must blow smoke in the face of the new rule, consider designating one room as your nicotine haven. Invest in an air purifier and air-seal the room, except for the vents, said Dave Brijlall, an engineer at RAND Engineering and Architecture. If that doesn’t work — and depending on the building construction, it might not — give e-cigarettes a try.

Water Works

Q. Eight separate times over the last four years, water has leaked from the apartment above mine onto my bed. The landlord tells me it is because the tenant above me leaves her shower curtain open and he is not responsible for the damage. During the last leak, at least three gallons of sewage poured out of a live light fixture onto my bed. I am out of pocket for new mattresses, carpet, and cleaning, totaling about $3,600 so far. I filed a claim in New York City Housing Court, but lawyers are my last resort, because they are very expensive.  I live in a rent-stabilized apartment.  Any suggestions?

Upper East Side, Manhattan

A. Your neighbor’s energetic bathing habits are no excuse for raw sewage on your bed. Your landlord is required to fix the problem and should reimburse you for your damages.

Taking the landlord to housing court is a good first step, as it will certainly push him to fix the problem, but it won’t help you recoup your losses. For that, you might want to file a claim in small-claims court. Many people appear in small-claims court without a lawyer. You could also file a complaint with the Division of Housing and Community Renewal. The city agency can direct the landlord to make the repairs and give you a rent reduction. “That will cost a postage stamp,” said Sherwin Belkin, a real estate lawyer. “But it is an administrative, bureaucratic process.”

You can also file the claim on the agency’s website. Incidentally, now might be a good time to invest in renter’s insurance. It’s not going to cover any damage you’ve already sustained, but it will cover you for any future damage to belongings in your apartment. (But an insurer might not cover damages from a future leak in the same area if it learned that this was a recurring problem.)

Renter’s insurance typically costs less than $200 a year, and the deductible is often around $250, according to Jeff Schneider, the president of the Gotham Brokerage Company.

The Dowager Litigation Queen

Q. I have a 99-year-old neighbor who has survived seven floods from an upstairs neighbor over the last 17 years. She finally sued the co-op board and the sponsor, as the upstairs neighbor is not an owner but a renter from the original sponsor. Should she have sued the guilty party, or is what she did enough?

Forest Hills, Queens

A. Hats off to your litigating near-centenarian. Just out of curiosity, though, what is causing all these floods? Does she live below Noah’s Ark? From my vantage point on dry ground, she probably should have sued everybody, including her neighbor. “But if she didn’t, it’s not fatal,” said Aaron Shmulewitz, a real estate lawyer, pointing out that the sponsor is responsible for the actions of the tenant and will very likely turn around and sue the tenant anyway.

But at the end of the day, it won’t make a difference for the aggrieved party. Suing more people doesn’t mean she’ll end up with more money. “She’s not going to get a windfall,” Mr. Shmulewitz said. If she sustained $10,000 worth of damages, for example, she’s only entitled to $10,000 whether she sues one person or five.

Ask Real Estate is a new weekly online column that answers questions from across the New York region. Submit yours to [email protected].

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