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 INCENSED
QUESTION. One of our
owners is complaining because his downstairs neighbor burns a lot of
incense, mostly late at night. The smell goes through the floor into his upstairs unit. What are the board's
duties?
ANSWER. Because the odors may violate
the nuisance provision of the CC&Rs, the board must investigate the
complaint and make a good faith determination if the odors are excessive.
Nuisance. Owners do not have a right to
be completely free of sounds and odors when they live in a condominium. To
constitute a
nuisance
the noise/odors must be sufficiently annoying to cause an unreasonable
disturbance to the free use of property by the owner in the adjacent unit.
Action. If, in the board’s opinion, the
odors are strong enough to constitute a nuisance, the board must take
appropriate action to stop the first owner from disturbing the second owner.
 A
simple phone call or warning letter may cure the problem. If the owner ignores
the warning [incense is often used to mask the smell of marijuana smoke], the board should give
him a
hearing and impose a
fine
for each nuisance violation.
If the owner wants to continue smoking pot . .
. sorry, I meant burning incense, he could cure the problem by (i) buying a HEPA
filter to clean the air in his unit, or (ii)
sealing
all penetrations in walls, ceilings and floors (at his expense) to prevent the
smoke from migrating to surrounding areas.
 If the fines
do not cause the owner to cure the problem, the association can go into court
for an order that the owner cease creating a nuisance.
Religious Observance. Even if the
burning of incense is for religious purposes, the same rules apply.
Tobacco Smoke. Because of the problems associated with second-hand smoke,
many associations are
looking at going "smoke free"
by amending their CC&Rs to prohibit smoking everywhere in the association,
including owners' units.
 In a case decided November 2006 in Colorado, an
association banned smoking in owner's units because second-hand smoke was seeping into adjoining
units. One of the owners (a smoker) sued. The court
upheld the smoking prohibition and found that the CC&R
amendment "was proper, reasonable, made in good faith and not arbitrary
and capricious." Christiansen
v. Heritage Hills
The city of Belmont in the San
Francisco Bay area is currently considering a ban in all apartments and condominiums in
the city. In 2003, the Seattle Housing Authority opened a
smoke-free property, an 86-unit development called the Tri-Court. The
restriction was imposed because residents with asthma, emphysema and other respiratory
problems were asking for a smoke-free building.
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Sincerely
yours,
Adrian
J. Adams, Esq.
ADAMS & KESSLER LLP |
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