How to deal with nuisance smells in condos
Sea Coast Online—New Hampshire
By Robert E. Ducharme
03 March 2017

I recently had an issue arise at a condo association that is not terribly uncommon. An American couple of Indian ethnicity cooks with curry. Sometimes a lot. The odor wafted into a neighbor's unit and he complained to the board. This can be tricky.

What constitutes a nuisance, including cooking smells, is generally left to the board, any board. Usually there is language in the documents, or there should be, that reads something like this: "No harmful or offensive use shall be made of any part of the condominium and nothing shall be done therein which is or will become in the judgment of the Board of Directors an annoyance or nuisance to another."

Usually this provision is invoked by the board to deal with smoking cigarettes and loud midnight parties to which the board has not been invited.

However, boards have to be careful about defining cooking smells as nuisances. Curry is, of course, very pungent. But so are broccoli, cabbage, onions, asparagus and, of course, fresh fish (which doesn't smell until it is cooked and chemical compounds are released). And what if a different neighbor simmers spaghetti sauce or cooks fried chicken a lot? These smells waft as well.

Certain dishes can smell unpleasant and unappetizing to those who are not familiar with them, but that does not make them a nuisance any more than if a neighbor could hear voices next door but only complained because they were in a foreign language. So, simply finding that an ethnic cooking smell is a nuisance rightly opens an association to discrimination suits.

When such a complaint comes in, I would take the following investigative and remedial steps.

•	Investigate the structure of the building for spaces where air/smells may be entering that should not, such as in light fixtures, through attics, ventilation ducts, and poorly insulated walls. Foam that hardens can be injected into openings and used to create, essentially, a wall through which odors cannot seep. Many associations were constructed many, many years ago. Regardless of the quality of the materials and design at that time, ducts and vents may have deteriorated or become clogged over time. If so, cleaning or upgrading them may well be a necessary association expense.
•	Have the board visit the complaining neighbor when the smell is present. If the odor is strong, have a professional check to see how it is permeating. It could be, for instance, there is little to no insulation between the Units. If so, add insulation. It could be vents that use to work have fallen into disrepair. It could be that renovations made to either unit have created new air space through which the odors are traveling. Whatever the source, the board will have to look at the documents to see who is responsible for any necessary repairs or building upgrades.
•	If, the smell persists, set a meeting between the two neighbors.
•	Is this the smell occurring daily, week, infrequently? The neighbors may set agreed upon times during which meals with strong spices or smells may be cooked.
•	Require all owners to use kitchen fans while cooking.
•	Require that the kitchen fan vents are checked annually.
•	Also, it could be because of personal smell sensitivity. Is there an owner on the other side? If so, has that owner complained?
•	How long have the neighbors been living there and how long have they been cooking as they have? If they have cooked this way for years and only now the person is complaining, then it is likely not a true nuisance as at least one court has ruled. The trick is to take reasonable steps to investigate and create a reasonable, nondiscriminatory policy.

And now, I might just go home, break out the cabbage and fish oil and make a batch of Kimchi. Of course, that may be why I don't live in a condominium.

Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties.

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