Condo Media - May 2010 - 28

LEGAL

by Henry A. Goodman, Esq.

Where There Is Smoke, There Is Ire
Condominium Document Provisions Challenged
or most of my adult life, I have lived in condominium units (and, might I add, without problems). After all, most condominium documents contain a provision similar to the following “No unit owner may use or maintain his unit, common areas and facilities appurtenant thereto or limited common areas in any manner or condition which will impair the value or interfere with the beneficial enjoyment of the other units, the common areas and facilities and limited common areas.” The documents then go on to say that these restrictions (along with others) are for the benefit of the unit owners and will be enforced by the board. Many people move into condominium units with the misconception that if some total jerk moved in next door and disturbed the comfort and enjoyment of a neighboring unit occupant, the person who was being disturbed could have the board enforce the quoted language that is supposedly designed for the benefit of all unit owners and occupants. As my grandson would say, “NOT!” Many resident vs. resident complaints are private matters that should properly be addressed by the residents themselves without involving the board. Unfortunately, the danger with this type of provision is that the language mentioned above and similar language is so all-encompassing that it could potentially embroil associations in needless litigation with uncertain outcomes.

Suit Challenges “Enjoyment of Unit” Provision
I was recently involved in a case wherein, amongst other things, the board was sued for its failure to enforce a similar provision in its documents. An owner claimed that smoking in my client’s unit permeated her unit and caused a flare up of her asthma, forcing her to move from her home as recommended by her doctor. This case has a fascinating fact pattern because it brings in many issues and almost all types of parties to this claim. Therefore, a brief recitation of the facts is in order. The ground floor unit consists of two levels. Ed and his old friend and roommate, Mike, occupy the ground floor unit, which is owned by Ed. Mike had smoked in the unit for approximately 15 years before this case began. Throughout all those 15 years, no one complained about smoke or nicotine. Then, the owners of the first floor unit decided to sell. Alyssa, who was looking for a new home, saw the first floor unit located above Ed’s and told her brokers that if she purchased the unit, she would make alterations, graphically describing those renovations. At some point prior to executing a purchase agreement, Alyssa claimed she told the brokers that she smelled smoke. She alleged that she asked about the source of the smoke and was allegedly told that the smoke was probably from the sellers and that

her proposed renovations would remove the smoke. The brokers deny that such a conversation took place. After buying the unit and doing her renovations, Alyssa still smelled smoke and claimed that her asthma, which had been in remission up to that point, had re-occurred. She complained to the City of Boston, which sent a representative to collect air samples. The report came back with an elevated nicotine count in some, but not all areas of the unit (i.e., the front hall, outside her front door, in a second bedroom and in a closet under the washer and dryer).

Remediation Efforts
Alyssa determined that the smoke was coming from Ed and Mike’s home and demanded that the condominium association, Ed and Mike take steps to prevent the smoke from entering her unit. She also allegedly did some work in her own unit to seal up potential points of entry. The condominium board took no action. Ed sealed up his electrical outlets and other areas that might be points of exit for the smoke, purchased large, expensive air purifiers and relegated Mike to the lower level for smoking. A re-inspection by the city showed that the nicotine issue had improved, but there was no quantitative report as to the nicotine values as of the time of that second inspection. Alyssa, armed with a doctor’s statement that she could not live in a unit with elevated nicotine, moved from the condominium. Thereafter, she rented the unit to two or three successive tenants, none of whom complained to the owners or the board about smoke.

CONDO MEDIA • MAY 2010

Condo Media - May 2010

Table of Contents for the Digital Edition of Condo Media - May 2010