Claiming Diplomatic Immunity to Sidestep Building Policies

Q Foreign diplomats are smoking in their apartments. Are they allowed to claim some sort of diplomatic immunity from my building’s no-smoking policies? Are they exempt?

A No, diplomats aren't exempt, says attorney Niles Welikson. In one case involving a lease renewal, a court didn't recognize a tenant's claim of diplomatic immunity. The court found that the proceeding dealt with the tenant's residence and this matter was separate and unrelated to whatever public relations the tenant conducted for his government [Rhee v. Dahan, November 1982]. As such, an employee renting an apartment wouldn’t be able to utilize diplomatic immunity as a defense.

While a diplomat wouldn't be exempt from a building's policy, the question to consider is what can be done about it. The main remedy an owner would have if diplomats are smoking in the  building would be nonrenewal of their lease, assuming the apartment isn’t regulated. If it isn't practical to wait until the lease expires, the owner can consider bringing a holdover for violation of the tenancy provided there’s appropriate language in the lease that requires the tenant to refrain from any conduct that interferes with other tenants or occupants, prohibits smoking in the apartment and common areas, or bars the tenant from allowing offensive odors to emanate, Welikson adds.

On the issue of smoking in the apartment, attorney William Neville reiterates the need for proper lease language. Unless there’s a specific lease clause where the tenant promised not to smoke in the apartment, he isn’t aware of a basis to object to the smoking, unless it rises to the level of a nuisance that interferes with the neighbors’ ability to use and enjoy their apartments.

If no such clauses are present, they should be added in the future, says Welikson. However, he notes that this clause couldn’t be added to a rent-stabilized renewal lease as any such lease must be renewed on the same terms and conditions.

Local Law 147: Disclosure of Smoking Policies in Residential Buildings

In August 2017, New York City passed Local Law 147, which requires residential buildings with three or more residential units to create a policy on smoking and to share or disclose it with current and future tenants.

In passing Local Law 147, the City Council and the mayor stated that their rationale for enacting it was, among other reasons, to “encourage more buildings to adopt smoke-free policies” because “[t]here is no safe level of exposure to [secondhand smoke].” While LL 147 doesn’t prohibit smoking within apartments, nor does it require that any specific prohibitions be included in a building’s smoking policy, it does extend the Smoke Free Air Act, which prohibits smoking in common areas of buildings with more than 10 apartments, to buildings with three or more residential units.

Essentially, LL 147 is a disclosure statute, enacted so that prospective tenants can make an informed decision as to whether a building’s smoking policy is one that makes the building a desirable home for them. The law requires that owners of buildings with three or more residential units:

• Create a policy on smoking and share it with current and future tenants.
• Share where smoking is and isn’t allowed on the property, including all indoor and outdoor locations. The Smoke-Free Air Act bans smoking tobacco or non-tobacco products and using e-cigarettes in common indoor areas.
• Provide an annual notification of the policy on smoking to tenants.
• Provide a notice to all tenants if the policy on smoking changes.