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], the board should give him/her a
hearing and impose a
fine for each nuisance violation.
If the owner wants to continue burning incense, he could cure the problem by (i) buying a HEPA filter to clean the air in his unit, o
r (ii) sealing all penetrations in walls, ceilings and floors (at his expense) to prevent 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.
ASSISTANCE: Associations needing legal assistance can
contact us.
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