QUESTION: I am on the board of a retirement community. We have a resident complaining of cigarette smoke. We investigated and could not smell any smoke nor is there anyone around her who smokes. She is threatening to go to Fair Housing if we don't do something about it. What should we do?
ANSWER: Your resident may be suffering from a condition known as phantom smell syndrome. The medical term is phantosmia. She smells things that aren't there. Medical literature describes a long list of causes for this unfortunate olfactory hallucination--some serious and others benign.
Investigate Complaint. When complaints are made, boards should investigate and determine if the noise/odor is a mere annoyance or an actionable nuisance.
[E]very annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed ... but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 764.)
Document Your Investigation. Directors don't need to personally investigate. Managers, maintenance personnel, or experts can investigate and report their findings. If the board concludes the noise/odor is not a nuisance (or doesn't exist), the finding should be documented in a letter to the person.If the matter ends up in court, the board's investigation, deliberation, and decision should satisfy and be deferred to by the judge.
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