Living
Banning smoking in apartments, condos
What every association and owner should know
(Washington Blade photo by Phil Reese)
By DAVID A. RAHNIS
Many urban dwellers are waking up to the concerns surrounding secondhand smoke in their apartment cooperatives and condo buildings. To date, approximately half of all states (including D.C.) have passed comprehensive smoke-free laws. However, these laws typically exempt a person’s home. There is no effort on the horizon to ban smoking in all multiple family dwellings in D.C. This situation could create a dilemma for non-smokers trying to coexist with smokers in a residential environment. Nationwide, the number of residential buildings becoming voluntarily smoke-free appears to be growing.
The secondhand smoke issue is usually raised when a resident complains about the smell of smoke entering his or her apartment from other apartments or areas within the building. Attempting to address those complaints, building management will often undertake an investigation or some corrective action to address the smoke odors. Often, these initial efforts may fall short and residents will contend that only a full building-wide smoking ban can resolve the problem.
The first step for any coop or condo when facing this issue is to review the building’s governing documents for any provisions pertaining to smoking. If a board determines a smoking ban to be in the best interest of the building, the most effective way to do so is through an amendment to the governing documents. For example, in the cooperative setting, an amendment to the Proprietary Lease and/or By-Laws is the most effective means of enforcing a ban. Residents should examine the procedures and voting requirements necessary to amend the governing documents. In the cooperative setting, the most appropriate venue for obtaining shareholder consent would be a special meeting of the shareholders, held in accordance with the by-laws. A court is more likely to uphold a smoking restriction adopted by a supermajority of apartment owners rather than by simple board action.
At this point, there is only one local case involving smoking in the cooperative environment. In David Schuman v. Greenbelt Homes, Inc. (a 2011 Prince George’s County, Md. Circuit Court case now on appeal), a non-smoking cooperative townhouse owner sued building management and his neighbor on the grounds that secondhand smoke from his neighbor violated the nuisance clause of his mutual ownership contract. The non-smoking owner claimed that he suffered from coughing, sneezing, congestion and watery eyes for years due to the secondhand smoke. In an attempt to alleviate the problem, the management company caulked around baseboards, plumbing and electrical outlets in both homes. Such efforts did not satisfy the non-smoking owner.
However, the Circuit Court ruled in favor of the management company, noting that “not all nuisances are necessarily actionable” and that the matter was more appropriate for the state legislature. The court found that the level of smoke entering the non-smoker’s townhouse constituted merely an offensive odor and did not trigger an actionable nuisance. The court said that the plaintiff needed to demonstrate “real injury” such as an “unfavorable health condition”. In addition, the court found no bad faith in the management company’s handling of the non-smoker’s complaints.
While a significant body of legal analysis does not yet exist in the D.C. area, courts in other jurisdictions have already begun addressing and analyzing the issues surrounding community smoking bans. The underlying conclusion is that boards and managers need to be alert to secondhand smoke complaints because cooperatives and condos can be held legally accountable for failing to address smoking-related concerns.
A 2006 New York civil court case addressed the potential for landlord liability due to secondhand smoke. In Poyck v. Bryant, the court found that tenants who vacated a condominium apartment before the lease termination date due to secondhand smoke from an adjoining apartment could assert the “warranty of habitability” as a defense to their landlord’s nonpayment of rent proceeding, notwithstanding the fact that the landlord had no control over the adjoining apartment. The court held that a sufficiently egregious secondhand smoke condition presents health hazards so as to invoke the warranty of habitability, and that the landlord had the power to act against the smoking neighbor.
In Christiansen v. Heritage Hills 1 Condominium Owners Association, a Colorado district court in 2006 upheld an amendment to a condominium declaration that banned smoking inside apartments. The court noted that the board had already tried, unsuccessfully, to address secondhand smoke through various remediation measures.
The New York County Supreme Court in Reinhard v. Connaught Tower Corporation ruled in 2011 that coop boards are required to act reasonably when residents complain that secondhand smoke is infiltrating their apartments from other parts of the building. In this case, the plaintiff-owner of a coop apartment sued the corporation because she detected a strong smell of cigarette smoke in her apartment. She was told by the managing agent and the superintendent to re-caulk the floor, molding and faceplates in her bedroom, which did not eliminate the odor. The board, however, refused to take any action and disclaimed any responsibility for the problem. Plaintiff then sued the corporation for breach of the warranty of habitability, breach of fiduciary duty and constructive eviction among other causes of action. The court held that the secondhand smoke in plaintiff’s apartment breached the warranty of habitability and as a result constituted a constructive eviction. Furthermore, the court determined that the co-op breached plaintiff’s proprietary lease by failing and refusing to take any “reasonable steps” to alleviate the secondhand smoke problem.
If a cooperative apartment or condo community is experiencing an increasing number of secondhand smoke complaints and if remediation efforts have been unsuccessful, the Board should consider a building wide smoking ban. In addition to a “town hall” style meeting, the Board’s next step might be to conduct a formal survey of apartment owners in order to determine the most feasible course of action for the community. If the survey results reveal that a full and immediate smoking ban is not appropriate, the building can implement a modified form of smoking ban. For example, the ban could be delayed for a certain period of time (e.g., two or three years) in order to allow owners/residents time to comply with the new rules. Alternatively, current smokers could be “grandfathered” out of an immediate smoking ban. At the same time, the building could begin to reject any prospective purchasers who smoke. In this manner, through gradual attrition, the building would eventually become entirely smoke free. Owners and boards would be wise to consult management and legal advice when facing these issues to avoid expensive litigation or claims of discrimination down the road.
This is a part of a series of monthly articles by Jackson & Campbell, P.C. on legal issues of interest to the LGBT community. Jackson & Campbell, P.C. is a full service law firm based in Washington with offices in Maryland and Virginia. Those with questions regarding this article, please contact David Rahnis at 202-457-1673 or [email protected]. Those with questions regarding the firm should contact Don Uttrich, who chairs its Diversity Committee, at 202-457-4266 or [email protected].
Real Estate
The rise of virtual home tours
Adapting to changing consumer preferences in spring real estate
In today’s dynamic real estate market, the spring season brings not only blooming flowers but also a surge of activity as buyers and sellers alike prepare to make their moves. However, in recent years, there’s been a notable shift in how consumers prefer to explore potential homes: the rise of virtual tours.
For the LGBTQ community, these virtual experiences offer more than just convenience; they provide accessibility, safety, and inclusivity in the home buying process.
Gone are the days of spending weekends driving from one open house to another – unless that’s your thing of course, only to find that the property doesn’t quite match expectations. With virtual tours, you can explore every corner of a home from the comfort of your own space – find something interesting? Schedule a showing with any LGBTQ Realtor at GayRealEstate.com.
This is particularly significant for LGBTQ individuals, who may face unique challenges or concerns when attending in-person showings. Whether it’s the ability to discreetly view properties without fear of discrimination or the convenience of touring homes located in LGBTQ-friendly neighborhoods across the country, virtual tours offer a sense of empowerment and control in the home buying process.
Moreover, virtual tours cater to the diverse needs of the LGBTQ community. For couples or families with busy schedules or those living in different cities or states, these digital walkthroughs provide a convenient way to view properties together without the need for extensive travel. Additionally, for individuals who may be exploring their gender identity or transitioning, virtual tours offer a low-pressure environment to explore potential living spaces without the added stress of in-person interactions.
At GayRealEstate.com, we understand the importance of adapting to changing consumer preferences and leveraging technology to better serve our community. That’s why our agents offer an extensive selection of virtual tours for LGBTQ individuals and allies alike – visit our website, choose an agent and within minutes you’ll have access to the Multiple Listing Service (MLS) via their website.
From cozy condominiums in bustling urban centers to sprawling estates in picturesque suburbs, virtual tours showcase a wide range of properties tailored to diverse tastes and lifestyles.
In addition to virtual tours, GayRealEstate.com provides comprehensive resources and support to guide LGBTQ buyers and sellers through every step of the real estate journey. Our network of LGBTQ-friendly agents is committed to providing personalized service, advocacy, and representation to ensure that all individuals feel respected, valued, and empowered throughout the process. Plus, we are happy to provide a free relocation kit to any city in the USA or Canada if you are a home buyer.
As we embrace the spring season and all the opportunities it brings in the real estate market, let’s also celebrate the power of virtual tours to revolutionize the way we find and experience our future homes. Whether you’re searching for your first apartment, forever home, or investment property, GayRealEstate.com is here to help you navigate the exciting world of real estate with confidence, pride, and inclusivity.
Jeff Hammerberg is founding CEO of Hammerberg & Associates, Inc. Reach him at [email protected].
Advice
Should I divorce my husband for the hot new guy in our building?
Debating whether to leave or stay after the sex goes cold
Dear Michael,
I’ve been with my husband for 10 years and the sex is pretty much gone. It stopped being exciting a long time ago and pretty much the only time we ever do it is with the occasional third.
A really hot guy moved into our building about a year ago. We would see each other sometimes in the elevator or at our building’s gym and we started talking and really hit it off. Mark is 15 years younger than I but we seem to have a lot in common. We started hooking up and the sex is amazing.
I haven’t told my husband because it’s breaking our rule about no repeats. I have to say that the secrecy is hot. It’s kind of a thrill to take the elevator upstairs when I say I’m going on an errand. But it’s more than that. I have a connection with Mark that is far more amazing than what I have ever felt with my husband. Not just the sex. We just enjoy being together, talking about anything and everything.
My husband went to visit his family last weekend and I spent the whole time with Mark. Since then I can’t stop thinking that I want to leave my husband and be with Mark.
Part of me thinks this is a crazy mid-life crisis. I mean, this kid’s in a totally different place in life. But we have mind-blowing sex and a fantastic connection. I’d like your thoughts on how to proceed.
Michael replies:
You’ve got a lot to consider.
First: Sex with a long-term partner changes over time. It tends to be less about erotic heat and more about the connection with a person whom you love. In other words, it’s being with the person you’re with that makes the sex meaningful and even great. Having a good sexual relationship with a long-term partner comes far more from a heart connection than from a crotch attachment.
Second: You seem ready to throw your relationship under the bus pretty quickly, without addressing other problems in the relationship besides sex. When you are sneaking around, lying, and rule-breaking , I don’t see how you can look your husband in the eye; and if you can’t look him in the eye, you certainly can’t have even a half-way decent relationship.
Yet another point to consider: Affairs pretty much always seem more exciting than marriage. The partner is new, which almost automatically makes the sex hotter; the secrecy is a thrill; and you don’t have to deal with paying the rent, house chores, and all the petty annoyances of living up-close with someone day-in, day-out.
You are bringing lots of energy to your affair, and everything about it is exciting. You are bringing no energy — at least no positive energy — to your marriage. You get what you put into a relationship.
Divorce is not something that should be entered into lightly. Be aware that if you leave your husband for Mark, you will no doubt find over time that the sex becomes less exciting and that the connection is not always fantastic. No surprise, 75 percent of marriages that begin with affair partners end in divorce. While I don’t think statistics predict what will happen to any particular couple, believing that you will have a significantly better relationship with your affair partner than you did with your husband sets you up for likely disappointment.
Many gay men focus on “hot sex” as the big draw, pursuing a lot of sex with a lot of men, and/or pursuing an ongoing series of relationships that last until the sex cools. If that’s what you want, that’s fine. But it’s a different path from pursuing a close and loving long-term relationship, which involves knowing someone well and having him know you well; collaborating on getting through the hard stuff life throws at us; finding ways to make peace with disappointment; and consistently striving to be someone worth being married to.
How to proceed? While you are the only person who should make that decision, I would suggest that whatever your choice, keep in mind that marriage can be more than what you’ve made of it, so far.
Michael Radkowsky, Psy.D. is a licensed psychologist who works with couples and individuals in D.C. He can be found online at michaelradkowsky.com. All identifying information has been changed for reasons of confidentiality. Have a question? Send it to [email protected].
Autos
Sport haulers: Jeep Grand Cherokee, Mercedes GLE-Class
Updated cabins, adept handling, and more
Now that March Madness and the Masters are over, it’s time for, well, everything else. For my husband and me, this means water sports, as in kayaks and rowing sculls, which is why we trekked to the Potomac for the George Washington Invitational regatta last weekend.
Alas, high winds splashed cold water on the event, canceling much of it. But there was still plenty of spirited camaraderie to rival “The Boys in the Boat.”
And I was reminded of my time years ago as a rower with D.C. Strokes, ferrying teammates to races up and down the East Coast. Back then my ride was a dated, rather cramped four-door sedan.
If only we could have paddled around in a sporty SUV like the two reviewed here. Now that would have been some smooth sailing (wink-wink).
JEEP GRAND CHEROKEE
$40,000
MPG: 19 city/26 highway
0 to 60 mph: 7.5 seconds
Maximum cargo room: 37.7 cu. ft.
PROS: Updated cabin, adept handling, strong towing
CONS: So-so gas mileage, no third row, pricey trim levels
IN A NUTSHELL: Rough, tough and buff. It’s doesn’t get much more butch than a Jeep. This year’s Grand Cherokee is no exception, with rugged looks, expert off-road capability and better-than-average towing capacity of 6,200 pounds.
There are a dizzying number of trim levels—more than a dozen—starting with the barebones base-model Laredo at an affordable $40,000. The lineup tops out with the Summit Reserve 4xe PHEV, which is almost twice the price at $76,000 and one of various plug-in hybrid versions available. Those plug-in hybrids can drive up to 25 miles on all-electric power before the four-cylinder gas engine kicks in. Otherwise, you can choose from a standard V6 or V8. Gas mileage on all trim levels is basically the same as the competition.
Where the Grand Cherokee really shines is in the handling. More refined than a Wrangler but less lavish than a Land Rover, this Jeep maneuvers just as well on city streets and highways as it does on bumpier terrain.
I tested the mid-range and mid-priced Overland, which comes standard with four-wheel drive and large 20-inch wheels. It also boasts a slew of niceties, such as quilted upholstery, panoramic sunroof and high-tech digital displays. These include a 10.25-inch infotainment touchscreen and rear-seat entertainment system.
The nine-speaker Alpine stereo, designed specifically for the Grand Cherokee, is pleasing. But I really wanted to hear the boffo 19-speaker McIntosh surround-sound system that Jeep also offers. Sigh, it’s only available on the premium Summit trim level.
MERCEDES GLE-CLASS
$64,000
MPG: 20 city/25 highway
0 to 60 mph: 6.6 seconds
Maximum cargo room: 33.3 cu. ft.
PROS: Lush interior, silky-smooth suspension, speedy
CONS: Some confusing electronics, tight third row, many competitors
IN A NUTSHELL: For a more high-class hauler, there’s the Mercedes GLE-Class. This midsize SUV is similar in size to the Jeep Grand Cherokee. But instead of seating five passengers, the GLE can carry up to seven. Sure, legroom in the optional third row may be tight for taller travelers, but it’s perfect for a cocky cockswain or two.
Six trim levels, ranging from the base-model GLE 350 to two high-performance AMG models. For eco-conscious buyers, the GLE 450e plug-in hybrid arrived earlier this year and can run on battery power alone for almost 60 miles.
My test car was the top-of-the-line AMG 63 S 4Matic, a head-turner in every way. Priced at a whopping $127,000, this GLE looks best in glossy black with the Night Package, which includes tasteful jet-black exterior accents and matte-black wheels. To complete the Darth Vader effect, there’s a deep, menacing exhaust rumble that’s downright threatening.
You expect such a ride to be wicked fast, and it is: 0 to 60 mph in a blistering 3.7 seconds. Yet the carbon ceramic brakes with their devil-red calipers are equally impressive in slowing things down quickly.
Inside, each GLE comes with two large digital displays on the elegantly sculpted dashboard. My favorite feature is the “Hey Mercedes” digital assistant, which responds to voice commands such as opening or closing the sunroof, operating the infotainment system or activating the climate controls.
It’s hard to find sport seats that are more comfortable, especially with the heavenly massage function (though those massage controls could be a bit more user-friendly.) For AMG models, the seats come with red-contrasting stitching and red seatbelts—a nod to the devilish demeanor under the hood.
Considering all the SUVs available in showrooms, few make quite the splash of a GLE.
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Should I divorce my husband for the hot new guy in our building?
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Advice4 days agoShould I divorce my husband for the hot new guy in our building?