Dear Habitat

I have owned a condo unit on Long Island for the past three years. Within the last six months, my neighbor has begun using large quantities of mothballs, and the odor has penetrated into my unit. It is overpowering, and all my family and I can do is open windows and run fans. We spoke to her about this and she became belligerent. She is essentially a shut-in. The odor has come into the hallway and to other units and even to the floor below us. The management company said they are trying to build a case against her, but that takes time. The bylaws state that odors may not penetrate from unit to unit, but all management can do is fine her, and she does not pay the fines. We are extremely worried for our health, and we don’t even think we can sell the unit and move, because any prospective buyers will be put off by the smell. Can she actually be made to clean this up? Do I have any recourse at all?

I am not surprised to hear that the management company indicated that they are trying to build a case; however, it does take time. These cases are complex and hard to prove in court, and can be costly. As such, your board will not begin a lawsuit without knowing they have enough documentation to prevail. You should notify the board, superintendent, and/or managing agent every time you smell the odor and ask them to come witness it. You should do this in writing and keep a log of the dates and times. You should also ask other unit-owners to come and witness the odors to substantiate your claims. All of the foregoing will be helpful to the board and its attorney should they decide there is enough evidence to start a lawsuit.

Once the board does substantiate the complaint, they will probably first write to the offending unit-owner demanding she cease using the mothballs and/or take steps to ensure the odor does not emanate from the unit into another unit or the common area. If the odor continues, they should then begin the lawsuit, at a minimum, seeking an order from the court compelling the unit-owner to stop the odor. I would ask the board and managing agent if they have sent any notification to the resident about the issue. If the board refuses to take action once the odor is verified, there are remedies. You could claim that the board breached its fiduciary duty by not taking action. However, I would try to work cooperatively with the board and managing agent first.

Marc Schneider Managing Partner, Schneider Buchel
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Yes, the unit-owner does have recourse. First, it might be helpful to have an environmental consultant take air quality measurements to see if there are any toxins or harmful particulates from the mothballs entering the apartment. If a report confirms a dangerous/problematic condition, a good first step would be to send the report to the neighbor. If the neighbor doesn’t cure the problem, the unit-owner could start a lawsuit against the offending unit-owner not only for nuisance, but also for breaching the bylaws.

It’s also important to note that in a condominium, unlike a cooperative, there is no landlord/tenant relationship. Thus, the aggrieved unit-owner can’t look to the board of managers and claim a breach of the warranty of habitability. While the board has a fiduciary duty to the aggrieved unit-owner, if the board is investigating and fining – thereby fulfilling its fiduciary duty – the aggrieved unit-owner may be hard-pressed to make a claim against the board/condominium because of the odors.

Steven Sladkus, Partner, Schwartz Sladkus Reich Greenberg Atlas

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