COOKING SMELLS AND OTHER NUISANCES

I have a new tenant who has been cooking some very fragrant foods. Some of the other tenants have been complaining about the smells, which permeate the hallway and even get into their units on occasion. What should I do?

Tenants cannot allow their noise, odors, and conduct to offend other occupants in the building. Doing so constitutes what is known in the law as a “nuisance.” A nuisance is broadly defined as any activity which arises from unreasonable, unwarranted or unlawful use by a person of his/her property. The local rent law has refined this definition to “creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building.”

Traditional examples of nuisances include playing loud music, hosting boisterous parties, allowing one’s dog to bark throughout the night, banging on walls, and the like. Several years ago, the Magazine published an article addressing the issue of second-hand tobacco smoke. In that article, the author explained that second-hand smoke, if allowed to permeate into common areas or another tenant’s unit, rose to the level of a nuisance.

When a tenant commits a nuisance, state and local law permit the owner to terminate the tenancy upon issuance of a three-day notice to quit. This is considered to be a severe remedy, as the tenant is not afforded the right to cure the problem. Indeed, a breach of the rental agreement and nonpayment of rent requires that the notice be stated in the alternative: Tenant has three days to cure the breach or to pay the rent, and only after failing to do so can the tenancy be terminated. Nuisance notices do not grant that luxury.

Before issuing a termination notice, landlords must evaluate the seriousness of a nuisance. Drug dealing from the unit requires no warning letter; rather, the three-day should be issued upon confirmation that such an activity has occurred. A loud party, on the other hand, is not as serious and probably warrants a warning letter informing the tenant that a second loud party could result in eviction. Similarly, smokers should be apprised that their smoke cannot encroach into the air space of others in the building by way of pre-notice warnings.

Likewise, cooking smells that offend other tenants is not illegal or outrageous conduct that would justify immediate termination of one’s tenancy. Instead, the owner should speak with the cook and ask that measures be taken to eliminate the offensive odors. Perhaps opening the windows, or use of fans, will rectify the problem. Written correspondences should be sent and kept in the file, documenting that the tenant has been requested to prevent the smells from offending others. While it is difficult to ascertain how long the warning efforts should be pursued, because this is not egregious conduct that imminently threatens the well being of other tenants, work with the chef to see if the problem resolves itself.

After expending good faith efforts to stop the smells, the owner at some point must consider the rights and needs of tenants who are experiencing the ill fragrance. Thus, if the bad aromas continue to invade common space and other units, and the file is replete with warnings, the landlord may have to issue a three-day notice to quit as a method of last resort. Should the situation become this serious, please consult with an attorney to ensure that all efforts have been exhausted prior to sending out an eviction notice.

DW

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