Sunday, November 18, 2007

Through the Roof

The New York Times
November 18, 2007

IN the classic New York City real estate dream, the sleeper discovers a room, maybe an entire wing, that he or she never knew existed. Then, just as the exhilaration of the newfound space starts to settle in, the dreamer awakens to crashing disappointment.

But for some New Yorkers, the dream is not so far-fetched, because they can build those illusory rooms on the rooftops of their own buildings. Squeezed by rising maintenance costs and in search of new sources of income, dozens of small-to-midsize co-ops and condos across the city are looking to their rooftops — the latest frontier for cashing in on every available inch of space — and are opting to sell building rights to top-floor residents or to other apartment owners.

The owners of the top-floor apartments pay for the chance to expand their apartments into duplex penthouses and to create roof decks with panoramic city views. The buildings, in turn, get money to pay for major projects like replacing the elevators or remodeling the lobby, as well as additional monthly income through higher maintenance or common charges as a result of the new space.

"We're seeing more of this now, and it's simply because the value of space has become so dear and rooftops always were the undiscovered value in this city, the underappreciated surface," said Tony Goldman, a developer and a restaurateur who has renovated many buildings in SoHo and the financial district.

The roof additions tend to be in loft conversions and brownstones — smaller-scale prewar buildings that have not been built to the full height allowed by zoning regulations. Large postwar buildings, on the other hand, tend to have already maximized their allowed square footage.

Jonathan Miller, an executive vice president of Radar Logic and its director of research, said that the "popped up" rooftop in loft conversions was probably what prompted many existing co-ops and condos to consider building upward.

He said that Miller Samuel, the appraisal arm of his business, has gotten more requests to appraise roof space in recent years. "Co-op and condo boards are looking for new ways to bring in money," he said. "They're naturally looking at everything that has been underutilized and that now has enormous value."

The city's Buildings Department says that by late October, 35 buildings in Manhattan had applied for rooftop additions, already exceeding the 2006 total of 34. In the 1990s, there were just a handful of applications each year.

But since 1999, just about the time that the city's real estate boom took hold, there have been a few dozen rooftop applications annually.

Of course, as with any co-op or condo issue that involves major construction and large sums of money, the perils are many. In any building, there is likely to be at least some disagreement over who gets to buy what and for how much, as well as anger and frustration over how disruptive and time-consuming rooftop construction can be.

Structural engineers must review the designs to make sure the building can physically support the addition. The projects also often require contractors to extend existing vents and chimneys. Buildings' proprietary leases and bylaws can vary, but in most cases, any deal will have to be approved by at least a majority of the owners, and project plans will have to be approved by the building's board.

But penthouse owners who have weathered the travails connected to cracking through the roof say that in the end, the results are worth all the trouble. They get more space without having to move, and they point out that buying similar quarters in a newly constructed building would probably cost them much more.

Juan Urrutia bought the rights to build on top of his Greenwich Village building about six years ago when the co-op wanted to raise money for renovations. It took more than five years, but his 1,500-square-foot apartment on the 16th floor grew to include a 300-square-foot screening room on a mezzanine level, an 800-square-foot addition with two bedrooms, a bath and an office area, plus two terraces with more than 1,200 square feet of outdoor space.

He is now in contract to buy an additional 750 square feet of space to provide a buffer around his penthouse. "We ended up having to buy more to protect what I had already bought," he said. "It guarantees the view forever."

The price per square foot in his building started at $65 and has since risen to $450. "The whole process was a lot more complicated than it sounds," he said. "And it's very expensive to build, but I still figure it would have cost me twice as much to buy it already done."

Mr. Urrutia credited his architect, Arpad Baksa, with finding ways to maximize the amount of buildable space and giving his duplex a seamless feel even though only a part of the top floor is directly above the original apartment.

It was Mr. Baksa who pointed out that an unused water tank — a remnant of a factory sprinkler system — and other ductwork on the roof could be removed or moved to make Mr. Urrutia's addition more functional.

Mr. Baksa, who has completed about 35 rooftop additions since the late 1990s and is currently working on six such projects, said that buildings have also hired him just to figure out how much additional space is permitted under zoning regulations and how many square feet can actually be built, two figures that are not always the same.

"You might have the square footage but not be able to use it," he said, noting that zoning restrictions can limit the usable space. Rooftop additions in landmark districts, for example, must be set far enough back that they cannot be seen from the street.

The price of roof rights is linked directly to the apartment beneath it and varies greatly, said Mr. Miller of Radar Logic. He said that rights generally sell for anywhere from 15 to 50 percent of the value, on a square-foot basis, of the apartment that will be connected to it, depending on whether the buyer plans to build a terrace or a new room.

So in a building that has top-floor apartments worth $1,000 a square foot, rooftop space could sell for $150 to $500 a square foot. "It's really what the market will bear because you're giving somebody the potential to upgrade their apartment," Mr. Miller said.

At 56 West 82nd Street, Eric Rath, a Bellmarc Realty agent representing the one-bedroom apartment on the top floor, urged the seller to take the option to purchase the roof rights above the $695,000 one-bedroom. "The option was a few thousand dollars, and it gives whoever winds up buying the apartment the exclusive right to buy the roof rights within a year," Mr. Rath said.

"It was the logical thing to do," he added, because otherwise another resident in the building could buy the space and build above the apartment. Actually purchasing the rights to build a 500-square-foot addition on the roof would cost $60,000, he said.

When Lara Sullivan bought her top-floor apartment in an Upper West Side brownstone in 2003, roof rights were included. The previous owner had already acquired the rights to the entire roof, including the space above a neighboring apartment. But because of that, Ms. Sullivan paid a premium for her 600-square-foot one-bedroom.

Stuart Moss, a broker with the Corcoran Group who handled the sale, said that about 30 percent of the $362,000 that Ms. Sullivan paid was attributable to the roof rights. But after she completes a $250,000 rooftop expansion next month, he estimates that the apartment will be worth about three times what she paid.

Ms. Sullivan, who is a principal in a private equity firm specializing in health-care investments, started planning the rooftop addition in 2005, but getting city approvals took more than a year, and she was disappointed to learn that even though she had the rights to nearly 1,400 square feet of roof space, zoning and landmark regulations limited her addition to 270 square feet.

Still, the renovation will give her a more open living space downstairs and a larger bedroom on the upper level, along with two terraces with more than 1,100 square feet of outdoor space.

"It feels like a different world on the roof," she said. "The price I had to pay for it was all the aggravation and the time it took to finish it."

Ms. Sullivan said that when the co-op board approved her plans, it also voted to increase her maintenance by $130 a month, to $850, which she thought was reasonable. "The number of shares I own in the co-op went up, but I think it was the right thing to do for the building," she said, "because I had the smallest space in the building to begin with and I now have close to the largest."

Penthouse apartment owners, of course, are not the only ones presenting building boards with rooftop proposals. Burt Wallack, president of Wallack Management, which manages about 60 apartment buildings, said several developers had approached him with proposals to build new penthouses on top of their buildings.

When that happens, he advises the building's board to get an independent appraisal, and to offer the space to residents before selling the roof rights to an outside developer. Getting residents' approval is important, he said, because construction can cause lots of disruptions.

"If it's done right, it could be an excellent thing for a co-op or a condo," he said. "But if it's not done right, it can easily turn into a nightmare."

Stuart M. Saft, a real estate lawyer who is the chairman of the Council of New York Cooperatives and Condominiums, said developers who propose building a new penthouse for sale to outsiders face an uphill battle because top-floor residents "generally won't want their apartments devalued with something on top of them, and they don't want the risk of noise that doesn't exist right now."

When Dennis Mitchell and his wife, Akiyo Matsuoka-Mitchell, opted to expand their top-floor apartment in SoHo three years ago, they had to grapple with many disappointments and complications.

A neighbor initially thought she, too, would expand above her apartment, so they limited their project to the space above theirs, only to learn later that the neighbor had decided not to build. "We would have liked to have the extra space, but by then it was too late for us to change our plans," said Mr. Mitchell, a fashion photographer who was president of the co-op board at the time.

They paid $100,000 for the right to build a 450-square-foot master bedroom suite, along with 600 square feet of deck and a 400-square-foot terrace on top of the addition.

Along the way, the roof height on the addition had to be scaled back from 16 feet to 12 feet after inspectors from the city's Landmarks Preservation Commission examined a mock-up of the expansion, created with sticks on the roof, and ruled that a penthouse with 16-foot ceilings would be visible from the street, a violation in a historic district.

The commission also required them to scrap plans for a stucco exterior and to substitute more expensive brick, to match a nearby chimney.

On the plus side, they were also able to buy about 50 square feet of hallway space on the lower floor. They paid $68,000 for the interior space, significantly more per square foot than what they paid for their roof rights, but it allowed them to create two bedrooms downstairs for their young children, one of whom was born during the construction period.

"We love the area and the building, and I feel like we were so lucky that we didn't have to move when the family expanded," said Ms. Matsuoka-Mitchell, who runs a jewelry design business from the apartment. "The space was able to grow with us."

Who Can Tell You What?

Finding out whether you can build an addition on your building's roof is more complicated than you might think.

The Department of City Planning can tell you the zoning and height regulations for your property, but it's the Buildings Department that tracks what has been built at any given location over time, and neither agency will answer your rooftop expansion questions.

Because roof rights involve the overlapping jurisdiction of both agencies, Kate Lindquist, the press secretary for the Buildings Department, recommended that owners of co-ops or condos consult a licensed architect or engineer with professional expertise in zoning and building regulations.

But Arpad Baksa, an architect who has advised many co-ops and who has done dozens of rooftop additions, said that the Web site could give you a good idea whether your building has any buildable space.

To get a ballpark figure for how much more space your building can add on, plug in your address at

If a building has available space, the site will list a number for "SF under FAR," which stands for the amount of unused square footage under the allowed floor-area ratio, or FAR. The ratio is used to determine the maximum building size allowed under zoning regulations.

PropertyShark's disclaimer makes clear that the numbers are an estimate. "They tell you their guess from maps, but they haven't actually measured the site," Mr. Baksa said, "and they don't know if there are other regulations that mean you can't actually build. But it's an amazing start."

Hiroko Masuike for The New York Times

Stairway to the stars Dennis Mitchell, Akiyo Matsuoka-Mitchell and their children, Leo and Lena Mitchell. The couple enlarged their top-floor apartment in SoHo with a master-bedroom suite on the roof.

Hiroko Masuike for The New York Times

The roof is reached by a sweeping staircase.

Hiroko Masuike for The New York Times

Eric Rath, who has a listing for a top-floor apartment at 56 West 82nd Street, urged the seller to take an option for rights to build on the roof

Hiroko Masuike for The New York Times

Lara Sullivan is expanding upward.

Hiroko Masuike for The New York Times

Arpad Baksa designed a penthouse and two terraces for Juan Urrutia.

Who's Got Your Number? Your broker does. And your board package, full of financial data, could be catnip to identity thieves

New York Magazine
By S.Jhoanna Robledo
Published Nov 18, 2007

Laura Matiz's client was insistent: For safety reasons, he didn't want his entire Social Security and bank-account numbers printed on his co-op board application. When his request was denied, he caved, but he asked that the copies of his package be returned after the interview. "Clients are getting more concerned, and it'll become more of an issue," says the Bellmarc agent, who says she was happy to comply. Years before, another client had had fraudulent credit cards opened in her name after she'd sent documents to a brokerage's general fax number.

A board application can be dangerous, and not just because it risks rejection. It's a treasure trove for identity thieves, thanks to the data it collects: bank and investment records, employment history, that all-important Social Security number. (Rental applications are fodder, too, providing much of the same information.) "It's amazing, when you think about it," says veteran broker Janice Silver. "It's every detail of your financial history."

And yet few safeguards exist, says Avivah Litan, an identity-theft analyst. This despite the fact that "the housing industry has the most flagrant examples of abuse," says Litan, who adds that real estate would be a "gold mine" to an identity thief. (The assistant who's been charged with the murder of super-broker Linda Stein was apparently once arrested for identity theft.)

Though the state licensing application asks Realtors if they've committed a crime, they aren't subjected to background checks—and neither are their employees. Nor has the government imposed data-privacy regulations, as it has with the banking and health industries. Michael Slattery of the Real Estate Board of New York says its code of ethics states that confidential information cannot be disclosed for personal interests, but doesn't require brokers to protect client information. (When asked if they have policies about destroying sensitive paperwork, representatives from Halstead, Corcoran, Brown Harris Stevens, and Prudential Douglas Elliman declined to answer.)

Management companies are supposed to shred board packets, but they don't always. And then there are the packet handlers, from those who collate copies to doormen charged with handing them out to board members. "I have a friend who sits on a board, and she says they throw them in the garbage!" says one prominent broker who's had two buyers ask for extra precautions in recent months. (One opted to spell out his Social Security number in e-mail.) Until changes are made in the system, though, it's up to consumers to watch their backs, and for brokers to help protect them. "It's a huge responsibility," admits Silver.

Illustration by Peter Arkle

Sunday, November 11, 2007

Back to Basics

The New York Times
November 11, 2007

A FEW years ago, developers created amenities to make their buildings stand out from the pack. Buyers returned the favor, rushing to the newest building with the latest gimmick and snapping up apartments as fast as they became available.

Many of those people are now living in buildings with pet spas, basketball courts, screening rooms and the occasional climbing wall.

But now developers are waving white flags, trading in outré amenities for well-executed must-haves and quality construction. "Absolutely, it's back to basics," said Harry Dubin, director of sales and marketing at the Athena Group, a developer based in Manhattan whose recent projects include the A Condominiums in Jersey City.

Buyers, too, are becoming increasingly wary, developers and marketers say. Manhattan condominiums now cost, on average, $1,178 a square foot, according to a recent report by the Miller Samuel appraisal company for Prudential Douglas Elliman, and many buyers are hesitant to spend a lot of money on extras. And with one eye on the resale market, they don't want expenses that drive up monthly common charges.

So instead of trying to tempt buyers with a long list of luxurious amenities, developers are trying to provide only those that buyers see as essential. The new standard calls for a gym, a party room and outdoor space like a common roof deck, if possible.

Kelly Wines, 28, has a dog, a fitness regimen and a busy schedule. And yet, when she went shopping for a condo, she wasn't looking for a pet spa or a fancy gym with treatment rooms.

"I don't need a dog run," said Ms. Wines, whose toy poodle is named Chloe. "When I walk her, I walk her wherever I'm going. And I don't think it's that hard to get my dog to the groomer. There are so many services in New York that cater to pets, I didn't need one in the building."

Top priorities for Ms. Wines were outdoor space and a chef's kitchen, because she likes to cook. She found what she was looking for at 100 West 18th Street, a building with 43 apartments developed by the Brauser Group. The one-bedroom apartment she is buying has the private balcony and the high-end kitchen appliances she wanted.

The building, still under construction, will also have a common room, a refrigerated room for grocery deliveries and a gym, which Ms. Wines has decided is "nice to have," even though she is already a regular at a Pilates studio.

Ms. Wines says she is paying "under $1 million" for her apartment, and the common charge will be around $1,000 a month. Even so, she believes that she's getting a bargain.

"For condos, its tough to get a decent-priced common charge when you have so few units," she said. But because the building's features were just what she wanted, "I'm not paying for something I'm not going to use," she said.

Some amenities have a life span all their own. In the 1980s, buildings with swimming pools were all the rage, and they made a comeback in the most recent boom. But there is a downside. "When you put a pool in, everyone says it's great," said Allen Goldman, president of SJP Residential Properties. "Then, after it's in, they say, 'My God, why are the condo charges so big?' A pool is incredibly expensive to maintain. Then they say, 'No one is ever there.' And you know what? No one ever is."

SJP is putting the finishing touches on 45 Park Avenue, a 105-unit condo at 37th Street with a concierge, terrace, gym and lounge. It does not have a pool.

Even Louise Sunshine, once the grande dame of extravagant amenities, senses a scaling back. Ms. Sunshine, who began her career working for Donald Trump in the 1970s, founded her own marketing company in 1985. It merged with the Corcoran Group two years ago, and she is now director of development for the Alexico Group.

"We started out with a few amenities," she said, "then we kept adding as time went on."

Over the last 10 years, Ms. Sunshine said, the trend was "one-off amenities, things that made people feel better about living in their buildings, made their buildings more exciting." As examples, she cited pet-washing salons, elaborate family activity centers and bowling alleys.

Then the shift toward simplification began a few years ago, Ms. Sunshine said, when "name" architects started to design new condominiums. "Those stars began to create a world of their own, a value of their own, a lifestyle for these buildings of their own," she said. "You don't need a badminton court when you have great architecture, great design, great views, great quality and the basic requisites."

Of course, for Ms. Sunshine, basic is relative. At the Laurel, a condominium being developed by Alexico on the Upper East Side, prices average $1,800 a square foot, with amenities that include a triathlon training center (with two pools), a screening room and a game room.

"As a developer, I think it's much more preferable to do a few things and to do them well," Ms. Sunshine said. "There's a point at which amenities don't have much of a return — they don't make all that much sense."

As developers take a second look at the bottom line, they are considering not just amenities but also escalating construction costs and the lack of buildable land in Manhattan.

Veronica Hackett, the managing partner in the Clarett Group, says that the math on pricing is evolving.

Consider a 1,400-square-foot apartment priced at $1.68 million. "If I'm going to take 50 square feet out of that apartment and put it into a gym, a pet spa or whatever, that leaves me with 1,350 square feet," she said. "I still need the same $1.68 million for that unit, or I'll never achieve my 25 percent profit margin.

"As a developer, I'm going to ask myself: What are the things that are most attractive to my buyer at that price range, in that location?"

The Clarett Group is currently developing the Sky House, a luxury building with 139 apartments at 11 East 29th Street. It features a concierge, a gym and a children's playroom. Marketing for the building focuses on its skyline views.

"When it comes down to it, people are going to look at a total package," Ms. Hackett said. "Do they want a pet spa, or do they want a great kitchen and the right windows? Things come and go, but quality and classic never go out of fashion."

David Wine, the vice chairman of the Related Group, said that the "less is more" trend could be attributed, at least in part, to construction costs. "Costs are through the roof," he said. "If a developer is going to plan something, they're really going to think twice in terms of cost. A developer today has to make every square foot as productive, economically, as possible."

Then, there is the dwindling availability of large lots throughout Manhattan, leading some developers to focus on smaller projects that can be built and sold in far less time than a behemoth.

"I don't want to be the guy with 250 condo units to sell in this market," said Scott Aaron, director of development at the Brauser Group. "You don't want to be out there selling for two, three years. You like to be able to sell out within the time frame that you're constructing the building."

There are, of course, exceptions. At the highest reaches of the market, hotel-style living is still the rule, and residents expect swimming pools, spa services, high-end room service and hefty monthly charges to match.

At buildings in up-and-coming areas — Harlem, say, or Long Island City, Queens — amenities can still serve as a lure, and buyers may rely on in-building services if they are in short supply in the surrounding neighborhood.

But these are the exceptions, developers say, and the paring down of costs is even extending to the suburbs.

Last fall, Marianna Greenberg and her husband, Marlon, looked at new condominiums in Jersey City. "I wasn't interested in the humongous buildings with the swimming pool, tennis courts, all those things," said Ms. Greenberg, 38, who operates Besu Salon and Day Spa in the Gramercy Park area. "Who would really, in real life, come home and play tennis every day? Even if you live in the building, you end up paying for it. It's in your maintenance."

Though they looked at developments like the Shore Club Condominiums and Trump Plaza Jersey City, the couple settled on the A Condominiums, the Athena Group's development, which has 250 apartments, each with outdoor space, as well as a gym, a party room, a common terrace and a parking garage.

The Greenbergs' two-bedroom cost $705,000, and the relatively low monthly common charge of $780 sealed the deal.

"The building is beautiful, clean and convenient, and it has all the amenities I'd like to use," Ms. Greenberg said. "That's more than enough for me."

Alex di Suvero for The New York Times

NOT JUST FOR SHOW At the A Condominiums in Jersey City, the Athena Group pared the amenities to a usable handful: a gym, party room, common terrace and garage, plus outdoor space for each of the 250 apartments.

James Estrin/The New York Times

SORTING OUT WHAT’S IMPORTANT Kelly Wines did not need a pet spa for her dog, Chloe, but she did want outdoor space and a chef’s kitchen.

Alex di Suvero for The New York Times

Marlon and Marianna Greenberg, who are buying a two-bedroom at the A Condominiums in Jersey City, did not want to pay high monthly charges for amenities they would not use.

Thursday, November 8, 2007

Condo Fee Defaults Surge in Manhattan

New York Sun
BY BRADLEY HOPE - Staff Reporter of the Sun
November 8, 2007

A precipitous rise in the number of condominium owners who are defaulting on their common payments, an important indicator of future foreclosures, is being reported.

Much has been said about Manhattan's perceived real estate invincibility in the aftermath of the subprime meltdown, but lawyers representing dozens of condominium boards in some of the city's wealthiest neighborhoods say they are seeing these default cases increase as much as 25% this year.

"There has been a very substantial increase of cases involving condominiums," a lawyer who is the president of the Council of New York Cooperatives and Condominiums, Marc Luxemburg, said.

Monthly common charges, which include general upkeep costs for the common area of a building and often reach into the thousands of dollars, can be the first indicator of foreclosures because homeowners stop paying them if they are having trouble with their mortgages.

During the last housing downturn in the early 1990s, there was a similar increase in defaults preceding numerous foreclosures, Mr. Luxemburg said.

"This could be an indication that something larger is going on," a partner at Breier Deutschmeister Urban & Fromme, Lisa Urban, said. Last year at this time, she had one such case of a default on common charges; now, she has seven.

A partner at the firm Belkin Burden Wenig & Goldman, Aaron Shmulewitz, said he has seen a 25% increase since the beginning of the year.

Buildings where condo liens are being processed include a nine-story apartment building at 2 South End Ave. in Battery Park City; a 12-story building at 114 E. 13th St. in Greenwich Village; a 27-story building at 420 E. 58th St. on Sutton Place; a 32-story building at 40 E. 94th St. on the Upper East Side, and a seven-story building at 205 E. 22nd St. near Gramercy Park. Calls to many of the managing agents that represent these buildings were not returned.

When a condo owner stops paying the building's common charges, the condo board files a lien to begin foreclosure proceedings. Liens are rare, as condo boards often end up negotiating with the owner out of court. Recently, however, condo boards are having a tougher time resolving such issues.

Mr. Luxemburg said that defaults on common charges have become so numerous that he is planning to discuss the problem at length at his organization's Annual Housing Conference next Sunday.

A senior management executive at Lawrence Properties, which represents 420 E. 58th St., Fred Balic, said that negligent tenants tend to let common charges accrue for months and sometimes years unless a lien is filed.

While most foreclosures are now in marginal neighborhoods, it may be just a matter of time before wealthier neighborhoods get hit.

In the third quarter, foreclosures in Queens rose 69% over last year to 2,702, according to real estate firm RealtyTrac. The Bronx saw filings surge by 43%, to 1,011, while in Brooklyn they were up 31%, to 2,498. In Manhattan, there was a 14% increase in foreclosures, to 402.

"Sometimes these things trickle down to people you don't think would be affected," the president of a foreclosures publication, Profiles Publications Inc., Jessica Davis, said. "Increases in defaults on common charges would be an early indicator of worse things to come. We haven't seen the end of this yet."

Monday, November 5, 2007

A New Arena in the Fight Over Smoking: The Home

The New York Times
November 5, 2007

Jill and Joanie Shockley just want to breathe clean air in their homes. Neighboring tenants want to smoke in theirs.

The Shockleys are sisters who live down the hall from each other in an apartment complex in a suburb of St. Paul, where tobacco smoke from other units wafts daily into their homes.

"It's frustrating," said Joanie Shockley, 59. "I like to have my grandchildren come over, and I don't like for them to be exposed to people smoking."

The Shockleys are part of a growing movement to restrict smoking in apartments and condominiums that is having some success.

This year, two California cities passed laws restricting smoking inside multiunit residential buildings. In the last 14 months, two large residential real estate companies with apartment complexes in several states banned smoking inside units.

Thousands of smaller apartment complexes across the country have taken similar steps, said Jim Bergman, founder of the Smoke-Free Environments Law Project, which is based in Michigan.

And about 60 public housing authorities across the country have smoke-free policies, compared with less than 10 three years ago, Mr. Bergman said.

Health advocacy groups call housing one of the smoke-free movement's final frontiers.

Owners of apartment buildings have largely ignored the issue but are starting to recognize the demand for smoke-free housing, said Mr. Bergman, one of the organizers of a meeting of about 75 smoke-free housing advocates from around the country held in October in Minneapolis.

Edward Sweda Jr., senior lawyer at the Tobacco Control Resource Center of the Northeastern University School of Law in Boston, says he has studied the legal issues of secondhand smoke for 28 years and knows of no law in the United States prohibiting residential property owners from banning smoking.

At least 27 lawsuits have been filed since 1991 over smoking in multiunit housing, and judges have often sided with the nonsmoker, Mr. Sweda said.

But many in the real estate industry believe that banning smoking in such buildings would be discriminatory and therefore illegal. When asked by residents to enact a smoke-free policy, property managers often say they cannot because of federal fair housing laws.

In fact, the federal Fair Housing Act protects nonsmokers in cases where people have breathing disabilities aggravated by smoke.

In the summer of 2006, First Centrum, based in Virginia, adopted a smoke-free policy for more than 5,000 units at its 46 apartment communities for older residents in Illinois, Maryland, Michigan, North Carolina, Tennessee and Virginia, said Robert Couch, president of the company's management division.

Over the last seven years, Guardian Management, which is based in Oregon, has banned smoking in units at five properties, and in August extended that policy to 8,000 rental units at 100 properties in Idaho, Montana, Oregon, Texas and Washington, said Tom Brenneke, the company president.

"It was an easy decision," Mr. Brenneke said. He said Guardian was motivated primarily by health and financial considerations, and he pointed out that a smoker's apartment cost $1,500 to clean when a tenant vacated, compared with $400 for a nonsmoker's.

Cities in California have taken the lead in adopting smoke-free housing ordinances.

On May 8, Temecula passed an ordinance that applies to apartment buildings with 10 or more units. The law requires landlords to designate at least 25 percent of their units, including balconies and patios, as nonsmoking. The ordinance is being phased in over five years.

On Oct. 9, Belmont adopted an ordinance that bans smoking in all units of multistory, multiunit residences, including balconies and patios. The ordinance goes into effect 14 months after passage.

The City Council of Calabasas is drafting an ordinance to regulate smoking in multiunit housing and is scheduled to discuss the issue on Nov. 28. The city's existing smoking ordinance states that owners and managers of private residential property may voluntarily prohibit smoking throughout the property.

Smoke-free housing legislation has also been raised at the state level.

Utah passed an amendment in 1997 stating that tobacco smoke may be considered a nuisance when it drifts from one residential unit into another. It also states that apartment complexes and condominium associations may adopt smoke-free policies.

Though smoke-free housing legislation is hailed by many nonsmokers as a step toward healthy living, it has drawn opposition from smokers and real estate groups.

The power to enact such policies should remain with the property owners, said Mark Ingrao, vice president of government affairs for the National Apartment Association. Smoke-free housing laws are "an erosion of private property rights," he said.

Some who oppose smoke-free-housing laws argue that if smokers can contain the smoke in their units, they should have the right to smoke there.

Researchers have analyzed whether smoke can be contained in various kinds of apartment buildings and found that the percentage of shared air generally ranges from 10 percent to 50 percent, with upper floors most at risk, said James Repace, a biophysicist who performs research on secondhand smoke in collaboration with the Tufts University School of Medicine.

"There is a tremendous unmet demand for smoke-free housing in America," Mr. Repace said, "and it boggles my mind that the real estate industry has not recognized that and tried to profit from it."