Dealing With a Neighbor's Nuisance Odors and Cooking Smells: Legal Options 

You may be able to take legal action if odors persist and affect your living conditions. But if you live in an apartment or a condominium complex, start by speaking to a property manager, landlord, or homeowners association.

Catching the aroma of food and cooking from your neighbor’s unit is part of apartment living. Sometimes a neighbor uses too much garlic or fries onions, and the smell lingers for a few hours. This is an expected part of shared living spaces.

But what can you do if the neighbors cook strong-smelling food every day? Or if other strong smells like cigarette smoke, marijuana, or pet urine waft through the vents? You may wonder about your legal rights and if you’re stuck smelling your neighbor’s orders until your lease expires or they move out.

Even if you don’t share walls with your neighbors, unpleasant smells can still find their way into your home. This article discusses what you can do about it, both in an apartment building and a single-family home.

Most odor nuisance issues don’t lead to lawsuits. But that doesn’t mean you don’t have options. If the smell is persistent and affecting your quality of life, a local real estate attorney can help you understand your rights and what steps you can take. If you decide to take legal action, an attorney will guide you through each step of the legal process.

Cooking Smells and Apartment Buildings

Issues with neighbors’ cooking or other smells differ depending on where you live. Courts treat nuisance complaints differently if you live in a single-family residence versus in an apartment complex. You may have a cause of action for cooking odors and other smells, depending on your situation.

Apartments

Modern apartment complexes and condos generally have sophisticated HVAC systems designed to reduce airflow between apartments. But in older buildings, the ventilation systems are often connected. This allows apartment smells to flow between units.

Apartment leases often contain clauses guaranteeing a “right to quiet enjoyment.” In an apartment or condo, the apartment manager is responsible for resolving issues between tenants. Before you can begin other legal action, you need to speak to the manager or landlord.

Single-Family Homes

Private homes seldom share common walls, so foul smells from kitchens or bathrooms are less likely to travel from house to house. Conversely, such smells are more likely to be the pungent, persistent odors that justify legal action.

Property owners have less ability to control their neighbors’ actions in private residences. What you do in your own home is your own business, up to a point. If you are a renter in your home, your lease may contain restrictions on what you can and cannot do. They may be less restrictive than in an apartment.

Types of Nuisance Smells (and Other Nuisances)

Not all food smells qualify as nuisances. To have a case for private nuisance, you must show:

• That you own or have a right to live on the property (including renting)
• The other person’s actions are interfering with your use of the property
• The interference is “substantial and unreasonable” according to your state’s statutes

Some objectionable smells that could interfere with the enjoyment of your property could include:

• Cooking smells like grease, heavy spices, and burning food
• Incense, scented candles perfume, or air fresheners
• Garbage or compost
• Pet feces or urine
• Smoke from cigarettes, marijuana, or cigars

Nuisance vs. Annoyance

Some homeowners’ associations or condo associations have bylaws prohibiting certain behaviors. Many apartment complexes today have no-smoking floors or leases that require deposits for smokers.

Leases generally cannot restrict tenants from cooking food as they choose. Bylaws and leases can restrict common area grilling to certain times of day, such as daylight hours or before 10:00 p.m. But tenants cannot demand that other residents stop cooking meat because they are vegan, or not make curry because they personally dislike the smell.

But courts have held that strong, persistent odors that affect common areas, hallways, or more than one residence can be nuisances. This is especially true if the odors persist despite all reasonable efforts to control them.

A bad or obnoxious smell that occurs once or twice, or that only affects you, is probably not a nuisance. A chronic smell that lingers day after day may become one.

Proving Smells Are a Nuisance (or Defending Yourself from a Nuisance Lawsuit)

Proving a smell is “substantial and unreasonable” is more difficult than some other kinds of nuisances. Smell is subjective—what smells bad to one person may not bother another. Unlike bright lights or loud parties, it’s hard to make an objective record of odors. All you can do is describe the smell and how it affects you.

To prove a smell has become an unreasonable nuisance, consider the following steps:

• First, you should always get legal advice. Discuss the legal issue with an attorney before taking any legal action.
• Document the problem clearly. Keep a record of the times, days, and locations of the smells. Describe the smell to the best of your ability. Compare it to other, well-known smells if you can (“like when someone burns broccoli in a microwave” or “heavy cooking grease”).
• Explain why the smell interferes with your reasonable use of your property. If the smells are lingering in one area of the home, such as the living room or bedroom, keep a note of that and explain why the smell makes using the room problematic. If the smells cause physical problems, document those carefully.
• Communicate the problem with your neighbor. It’s possible the neighbor doesn’t realize there is an issue. Ask if the exhaust fan over the stove is working or needs cleaning. In an apartment building, building management is responsible for maintenance. Document your discussions with your neighbor and what agreements you reach.

Before taking any legal action, try other methods of resolving the smell issue. This can include the use of air purifiers, improved air filters, opening windows when you can, and other methods. If you can show the judge that you tried all other means to fix the problem, you’re more likely to prevail in court.

Legal Options for Nuisance Odors

Depending on your living situation, your legal options vary.

In a condo, apartment, or co-op, your lease or bylaws may contain clauses about cooking or other smells. Contact the property manager and see what options the property offers.

You and your neighbor may consider mediation or alternate dispute resolution. These methods help parties reach compromises in situations like these. Your attorney can help you locate a community mediator who can work with you to find a solution.

If you and the neighbor cannot reach a mutually agreeable solution, you may need to go to court. Some kinds of smells, such as second-hand smoke, are legally recognized as harmful. You may be able to obtain an injunction when the neighbor’s intrusion involves smoke or another harmful toxin. An injunction is a court order requiring someone to stop doing something.

If you are defending against a nuisance odor complaint, you should do your best to cooperate with the complaining party. As stated above, what smells bad to one person does not always smell bad to another. In some older buildings, ventilation systems may connect without tenants realizing it, so your cooking smells could be drifting into other apartments without your knowing.

If your neighbor is genuinely unreasonable, don’t argue with them. Get your own attorney and communicate that way. Avoid any desire to retaliate by cooking more of the allegedly offensive food. Respond to all requests for documents and court hearings, and be reasonable with the judge.

Get Legal Advice About Nuisance Odors From an Attorney

Getting pulled into a next-door neighbor dispute can further exacerbate an already frustrating situation. If you’re having trouble with a neighbor’s cooking smells or a neighbor complaining about what you cook, help is available.

If you reside in an apartment complex, talk to your landlord or property manager about your situation first. If this does not resolve the problem, consider contacting a landlord-tenant attorney. An experienced lawyer can review your situation and determine if your landlord is failing to fulfill their responsibilities under your lease.

If you live in a single-family home, get legal advice from a real estate law attorney. This type of attorney can help you understand your rights and the law and support you throughout the conflict with your neighbor.