Ooh, That Smell: Sniffing Out Nuisance in Community Living

Last month, a new tenant moved in at Smell Hay Condominium. The tenant, Mrs. Alba Core, a retired seafood chef, spends all day, every day, cooking up unique fishy concoctions for her family. After a week of this, the abutting unit owners began complaining to the board that the strong smell of fish had overcome their units — even getting into their clothing. One unit owner began experiencing an increase in her migraine headaches as a result of the odor, causing her to miss several days of work.

The board told the complaining unit owners they had no recourse, and the board could not stop someone from cooking what they wanted in the privacy of their own unit. The unit owners continued to complain so the board decided to obtain a legal opinion so they could back up their position. The resulting legal opinion, however, surprised them.

Rhode Island law defines a nuisance as an unreasonable use of one’s prop­erty that materially interferes with a neighbor’s physical comfort or use of his property. More often than not, nuisance complaints involve an individual doing something that is intrinsically lawful. The problem arises when the action, although usually lawful, unreasonably interferes with another’s use and enjoyment of the property.

The law of nuisance plays a large role in community living. Unit owners and their tenants often forget there is a difference between residing in a single-family home versus living in a community living situation. Actions by a unit owner or its tenant that may be considered a nuisance in a condominium may never be an issue in a single-family home.

It is the resulting damage that creates the wrong — not the action itself.

Boards often assume they have no control over what a unit owner (or tenant) does in the privacy of their unit. In a condominium, however, boards actually have both statutory authority (under Rhode Island law) and contractual authority (pursuant to the condominium’s governing documents) to get involved when one’s actions may constitute a nuisance. In my opinion, boards not only have the authority but an obligation to investigate a potential nuisance claim, and if appropriate, take all reasonable steps to abate the nuisance.

Most associations have a rule or other document provision that prohibits offensive behavior. This provision often reads something like, “No noxious or offensive activity shall be carried on in any unit, or in the common elements; nor shall anything be done therein willfully or negligently, which may be or become an annoyance or nuisance to the other unit owners/les- sees or occupants…” Boards have an obligation to enforce the association’s governing documents. Failure to do so may subject the board to liability by the affected owner.

The board, in the exercise of its judgment on behalf of the entire association, and pursuant to the rules and regulations, determines if the behavior in question rises to the level of a nuisance and/or offensive activity. That is, the board will make the determination as to whether the conduct unreasonably interferes with another’s use and enjoyment of the property.

If the conduct is found to be an un­reasonable interference to other’s use and enjoyment of the property, then the conduct should be dealt with just as any other covenant enforcement under the Rhode Island Condominium Act, in particular Section 34-36.1-3.20. Section 3.20 allows for fines up to $100 per day to be instituted for the offensive behavior, as well as attorney fees to be assessed against the unit when an attorney conducts the hearing. A board must never fine a unit owner without giving the unit owner an opportunity for a hearing before the board. Unit owners are responsible for any activity by their tenants, and while it may be useful for a tenant to attend a hearing, it is the unit owner that must have the notice and opportunity to be heard before the board.

Ultimately, if the nuisance cannot be abated, the association and/or the affected unit owner may be forced to bring an action in Superior Court for equitable relief for an order to stop the offending behavior and enforce the determination by the board. There, the question of reasonableness will be a question of fact to be established by the party bearing the burden of proof.

In the above example, the board has an obligation to investigate the complaints surrounding Mrs. Alba Core’s cooking. If possible, the board should first arrange an informal meeting with the owners and tenants to determine if some simple changes can be imple­mented that will alleviate the issues. Often things such as time limitations on cooking, increased ventilation, elimination of certain ingredients, or the use of deodorizer can make a big difference. Communication is important in community living situ­ations. Boards should always use tact when addressing nuisance complaints, especially when the offensive odor or sound may have root in the individu­al’s culture and/or religious beliefs.

If these changes cannot be agreed to or do not work, the board in the above example will have to convene to determine if the smell is creating an unreasonable interference with the neighboring unit owner’s use and enjoyment of the property. Seeing that the smell is so potent and continuous and has a negative effect on the unit owner’s health, the board will likely have no choice but to move forward with taking steps to stop Mrs. Alba Core from consistently permeating her neighbor’s units with the smell of fish, as outlined in the above discussion.

While it may seem unfair that Mrs. Alba Core would be prohibited from cooking to her heart’s desire, the takeaway is this: Sic utere tuo ut ali- enum non laedas. When translated into English, this Latin maxim means, “So use your own as not to injure another’s property.” When Mrs. Alba Core decided to reside in a condominium, she agreed to abide by the governing documents, which ultimately meant she agreed to restrict, or otherwise curtail, her behaviors so as to be considerate of others in the community. After all, she isn’t the only fish in the pond.