Tag Archives: Nuisance

There is No “Right to Smoke” at the Condo!

H.S. from Washington state writes:

Dear Mister Condo,

We have an owner who is objecting to his neighbor below, who smokes while sitting on her back deck. She even has a fan going outside to blow smoke away, so it does not go upstairs. We have rules saying no smoking within 25 feet of bldgs. But smoking is allowed on back decks. We only added in rules years back about 25 feet so not to put out cigarettes on flooring or drop onto walkways so not to burn coating. The property manager and president now want to have a lawyer draw up an amendment to prohibit smoking outside because of one owner whining. I feel they are taking away someone’s rights. I do not care for the smoke either, but I also hate having to close my windows when neighbors light up barbecues. That is more annoying to me, and lasts longer. I said maybe we should ban barbecues. I was only making a point about taking others rights away with barbecues. I believe we will have 4 against out of 7 on the board for having an amendment, but I will be gone this next meeting, so who knows? What is your feeling? It just seems like more, silly liberal “must not offend, take away rights, nonsense.

Mister Condo replies:

H.S., I can understand both sides of this issue quite well and while I agree with you that “less rules” is a simpler solution, nuisance-free living is a staple of most condo governing documents and the issue of smoke and foul odors needs to be taken quite seriously be condo association Boards unless they would prefer to defend their lack of action against such complaints in court by unit owners who wish to exercise their rights. Speaking of which, you use the word “rights” to describe smoking. There is no such right. Smoking is not constitutionally protected so no one has a “right” to smoke anywhere on association property. They also don’t have a “right” to barbecue and you have a right to claim the odor is a nuisance to you. The real question here is how far are the unit owners willing to go to protect their right to nuisance-free living. Non-smokers have the upper hand here although, their initial action is to ask the Board to restrict the activity. If the Board refuses, their only option is a lawsuit. If they are serious enough about protecting their own rights, they may just sue the association and they will likely prevail based on the current legal climate. You can search for local court records to see how the battle is going. My guess is you will see unit owners prevail against allowing smoking. Also, many state public health agencies are also encouraging smoking bans in all high-density housing (HDH) areas, of which your condo is likely one. With both condo governing documents and state agency policy on their side, non-smokers will likely prevail, in my opinion. Good luck!

Leaky Toilet Noise Disturbs the Condo Peace. Shoddy Repair Work Disturbs the Owner!

N.H. from Alberta, Canada writes:

Dear Mister Condo,

I had issues with a continuous flow of water from my toilet. Although the flap is closed, it’s not filling water in the tank. I did not know that flowing noise had affected the units below me, & made complaints to the manager. Got a call ” someone is coming to check your water between 9-10am” That’s all. I thought they are checking each unit of our building due to murky water issues as posted in our mailroom & elevators. I let the guy in. I was surprised why he went to my bathroom fixing it. I told my kids, how did this guy knew about my toilet? Two days later, a lady phoned me if my toilet was fixed. I said No, it started to run again unless I close the rubber flap manually with my finger. She asked if she can send Environment ??? to come fix it. I said No, my son can fix it. Then I got an invoice to pay the condo a back charge of over $500.00 for 5 hours labor including 1 hour travelling. I relayed the message to the manager that I am not paying. I was not made aware of the complaints made, & did not specify what that guy was doing. Then for the weekend, I intentionally let the water run again all night to prove that the plumber’s work was not successful. They got complaints again. One lady came up & told me to shut off my toilet. Then the caretaker phoned that I should shut off the switch underneath my toilet which I did. Few days after, my son came & fixed it in 10 minutes time. I also read in their March 31 board meeting minutes that they found where the noise came from & the owner will pay. This is totally without my knowledge what was happening. My manager just went ahead & did her thing without telling me anything. Today, my manager left a phone message that it is a by law. Is she right? If not, I`ll fight it in court & go to the media Go Public. Thank you very much for your kindness on helping a senior like me. Thank you for responding & for your advice.

Mister Condo replies:

N.H., thank you for your letter and let me express how sorry I am that your situation was not handled better all the way around. You seem like a reasonable person who meant no harm and was very willing to use a “common sense” approach to fix a problem that you were largely unaware of having an effect on your neighbors. That being said, “common sense” and common interest communities don’t always exist together. Your by-laws define what is and isn’t acceptable. The reality is that you had a faulty toilet valve of some sort creating a noise nuisance for your fellow unit owners, who have the right to a peaceful environment as defined in your by-laws. The neighborly way to approach this would have been to alert you to the problem and ask you to fix it or offer to have a repairman come fix it at your expense. While I don’t agree with the customer service or lack thereof that you received during this little fiasco, it sounds like the problem is now resolved. That the good news. The bad news is that you are being stuck with a $500 repair bill for a repair job that didn’t work and that you don’t want to pay for. Here is where “common sense” goes out the window and the association’s governance documents will come into play. It is quite possible that the association has the right to dispatch a repairman to your unit at your expense. The only way to know for sure is to check your by-laws and see what they say about handling unit repairs, especially those repairs that cause damage or nuisance to neighboring units. It may be cheaper to simply pay this bill than try to fight the association. Perhaps you can offer to split the bill with them or ask them for a refund from the repairman since he didn’t actually fix the problem. The bottom line is that the repairman was hired by them but at your expense, as per association documents. They should expect that the repair was done properly and at a reasonable price. Neither are true. If they can negotiate a lower bill or a waiving of the bill for failure to perform the repair, you might benefit from the savings. If the dollar amount were a good deal higher, I might suggest you hire an attorney and fight it but at $500 it would cost more to fight it than just pay it. And keep your son handy for any other repairs that he can make so quickly. If his handyman skills had been made at the beginning of this problem, none of this would have happened. I wish you all the best!

30-Year Condo Unit Owner Not Feeling Good Vibrations!

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B.B. from outside of Connecticut writes:

Dear Mister Condo,

I live in and own my condo. I have been here 30 years. The condo is 40 years old. I live on the top floor, 3rd floor. I have vibration coming from the unit on my bedroom side, and I am aware of what it is. But my association won’t do anything because he denied what was going on. There is no noise. I just feel my mattress move enough to keep me awake. The lack of sleep is causing health issues. I now have vibration coming from the living room side when the owner decided to move back in. I did not have it when she had a tenant living there. I think the floors have some serious issues, but I can’t get the Board or the Management company to do anything. The building is old, we had termites years ago, and there have been a few small earthquakes. I believe a Dyson fan is causing the living room vibration, but cooperation is difficult. I want to get a vibration test done reflecting the problem I feel, but all the big companies don’t help. I am so frustrated. How can I get anyone to do anything? Can an attorney do something? Before I spend money for one, what kind of attorney helps in this kind of situation? Thanks.

Mister Condo replies:

B.B., I am so sorry for your problems. After 30 years in the condo, I am sure you are quite upset that your peaceable enjoyment is now being upset by tremors and vibrations. I am not certain what, if anything, can be done although I certainly think you should have a discussion with an attorney about what your rights are as outlined in your condo documents. Most documents address nuisance such as you are describing and you may be able to have the Dyson product banned from use if it can be demonstrated to violate your association’s nuisance rules. However, it won’t be easy as the most common nuisance items are noise and odor. Vibrations aren’t likely to trip the noise violation and the blowing of air isn’t causing an odor violation from what you have told me. Older building do come with their own challenges and earthquakes and general settling that have occurred over the past 40 years will most certainly have taken their toll on the building. If the building no longer meets your living requirements, you might consider selling and moving to a new home where the age of the building may not be as much a factor as your current home. That may not solve the current problem but it would no longer be your problem. If you speak with a local attorney knowledgeable in real estate law and you cannot find a legal remedy to your situation I think you will have to have a good long talk with yourself about how much you can tolerate and still be content. If this condo isn’t going to do it for you, I am certain there are many others that would. Good luck!

Condo Neighbor Cooking Up Some Bad Odors!

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J.R. from Hartford County writes:

Dear Mister Condo,

Is there any recourse for smells from cooking (or any strong permeating smells) that make the owners of the adjoining townhouse very uncomfortable? The new neighbors are renters. The complainants are long-time residents but now feel they cannot live in their unit because the smell is so strong. Nothing covers the odors. They are not even sure someone else would buy their unit.

Mister Condo replies:

J.R., that is an interesting problem. Most condominium by-laws have provisions that disallow nuisance, which can come in many forms, including noise, smoke, etc.. The real question is will the odor of strong food smells constitute a nuisance, and if so, can the association take steps to rid the nuisance? Most of the recent legal cases I have seen deal with nuisance odors from marijuana, which is now legal in many states for home consumption. Many condominium associations have brought suit against marijuana-smoking unit owners under the nuisance clause of their governing documents and have been able to prevent smoking of marijuana within their associations.

I am not an attorney but I think you would be well advised to seek a qualified legal opinion on this matter before you proceed further. Challenging someone’s cooking choices could lead to a discrimination lawsuit if the association is not careful. Get a qualified legal opinion before you take action. If you can’t solve the odor problem, at least you will know you did all you could to protect the offended unit owner. Good luck!