United States: "The Smell Of Pot, the Scent Of A Lawsuit"

Originally published in Habitat Magazine, March 2017

The building reeked of marijuana. Board members blamed the smell on unit-owners Josefina Henriquez-Berman and her son Charlie, who lived in Apartment 1S, in the 19-story, 414-unit Manhattan building. More troublesome to some, however, was that they were deadbeats who owed $12,000 in unpaid common charges. After repeated warnings and fines, the condominium sued them to recover the unpaid money and to stop them from smoking pot in their apartment and allowing the smoke to escape into common areas and other apartments.

A party requesting a preliminary injunction has to demonstrate to the satisfaction of the court that there is a likelihood it will succeed on the merits of its claim, that it will be irreparably injured if an injunction is not granted, and that the equities of the matter tip in its favor.

The court first discussed whether the board would succeed. The board based this action on legal theories of breach of contract and nuisance. To show that the contract had been breached, it submitted the bylaws. These stated no "nuisances" were allowed on the property. They also prohibited "immoral, improper, offensive or unlawful use," and required compliance with all laws.

In support of its request, the board submitted an affidavit from its managing agent, together with copies of records showing complaints made by other residents and visitors. In addition, reports of building personnel demonstrated that mother and son smoked marijuana in the apartment or permitted others to do so. The board showed that there were dozens of complaints made over a three-year period, showing that the smoke spread into other areas of the building. (As an aside, there were also claims of loud music and "construction noise" emanating from the unit.) The board showed that the offending shareholders received cease-and-desist letters and had been fined at least 10 times, to no avail. The court concluded, on a preliminary basis, that the smoke was a breach of the bylaws and also qualified as a nuisance. It also found that exposure to secondhand smoke can cause irreparable injury, meaning that money damages would have been inadequate to address the complaints of residents. As to the final element, the court quickly found that the equities balanced in favor of the board.

The harm to the board and other residents of the building far outweighed any loss the mother and son might suffer if required to stop smoking marijuana in their apartment.

The board presented one final reason for the court to grant relief: the use of marijuana is illegal. The court explained that it would not enforce criminal law. However, the court did enjoin the residents of Apartment 1S from permitting smoke and loud noises from infiltrating common areas and other units. It further noted that the mere fact that certain conduct might be in violation of the criminal statutes did not preclude the court – a non-criminal court – from issuing an injunction, because it had the authority to enjoin harmful behavior.

The Takeaway

When a condominium unit-owner breaches the bylaws, the board may have the right to fine, but if the activity persists, the board's only option may be to go to court. That is precisely what happened in Board of Managers of 400 Central Park West Condominium v. Henriquez-Berman and Berman.

It appears this building did not have a smoking prohibition in its bylaws. Even when condominiums do have such a provision, however, we are often asked by boards: "How do we enforce it?" The short answer is that such a provision is enforced like any other provision of a condominium's bylaws: fines can be levied, and boards can impose rules for what happens if there is a violation. But, in the end, if a unit-owner constantly violates the rules, the board will have little alternative but to attempt to get an injunction.

This illustrates a major distinction between cooperatives and condominiums. The co-op structure creates a landlord/tenant relationship between the co-op, as landlord, and the shareholder, as tenant. In the event of repeated violations of building rules, a cooperative will be able to serve a notice to cure and a notice of default. If a shareholder continues violating the rules, a co-op board may be able to terminate the proprietary lease and evict the shareholder. A condo does not have that ability.

No landlord/tenant relationship is created and a condo board, generally, has the right to enforce its bylaws as a contract (as was being done in this case). The condo board obtained an injunction – which is an important first step. But the injunction must now be enforced, which may mean the board will have to make a motion for contempt. And practitioners know all too well that, sometimes, it takes a few rounds before people understand that compliance with a court order – and a possible contempt order – is serious business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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