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What to do about smelly neighbor

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POSTED November 8, 2013 8:42 p.m.

Q: I haven’t noticed this issue in your column. My neighbor’s townhouse smells!  When she has her windows or doors open, the odor is so overwhelming that I am unable to be outside or even have my windows open.  This past summer, the smell was even drawn in by the air conditioner.  I’ve had guests suddenly cover their nose and comment on the smell so, it’s not my imagination. 

I’ve spoken to our HOA but, they are unable/unwilling to become involved.  They recommended contacting the health department. 

This neighbor is not approachable.  From some of her past actions, I have concerns about her mental stability. What are my rights?  Right to quiet enjoyment? Or is my only option to sell? If selling is my only option, do I need to disclose the reason I’m selling?  Victoria.

A:  Dear Victoria.  You are raising one of the most difficult questions facing Boards of Directors of community associations – whether they be a Home Owner Association or a Condominium, namely: when should the board get involved when there are disputes between individual owners.

In many states, there is a legal concept called “business judgment”. Courts in these states take the position that unless the board is doing something totally illegal, even if the board made a mistake, the court will not second guess the decisions or actions (or even inactions) of that board. In other states, the courts have rejected that concept and require boards to be reasonable.

I am sure that your legal documents prohibit owners to create a nuisance, and in my opinion your neighbor is creating a nuisance. Accordingly, I believe your board should get involved.

However, they did make a good suggestion, namely that you contact your local health department. If you have not done that, I strongly recommend that you take the board’s advice.

The smell may violate local building or health codes. If the health department inspector finds a violation, a citation will be issued to your neighbor and if she does not comply, the department can institute civil and even criminal proceedings against her.

If, on the other hand, the inspector takes the position that there is nothing you can do, then you should go back to the board. Tell them you took their advice but to no avail and demand that the board take action based on the nuisance that exists.

If the health department says “we have no jurisdiction here”, I would contact your local elected government officials and urge them to prod the department. After all, isn’t that one of the functions of those who are elected.

If all else fails, you really have two alternatives: put up with the smell or sell. But if you sell, you will have to disclose the problem.

Q: Back in 1997,  I purchased a condominium from my mother for a nominal sum. At that time all the papers were sent to her attorney for processing. I received copies of the transaction stating that the Deed was conveyed into my name.

My question is, do I have to do something else with this Deed as it stands, or is everything in place should I decide to sell the place and transfer the Deed to another party. David.

A:  David. Good question. You just have to confirm that the deed was, in fact, recorded with the Recorder of Deeds in the county where the property is located. If you are getting the real estate tax bills in your name, that should be more than adequate proof that you own the property.

But if there is any question, many Recorder of Deeds have put all of the land record information on line and you may be able to track your condo down. If not, you should be able to get assistance from the recorder’s office. And if all else fails, have a local attorney do a title search. I doubt, however, that this will be necessary.

If you own the property, you don’t have to do anything when you sell. In fact, you don’t even have to have the deed; nowadays when everything is on-line, all that would be necessary is to have a new deed prepared, giving the condo from you to your buyer.

Q: My husband and I are in escrow and are doing a VA loan. I just found out that the first house we had purchased and sold back in 2002 did not notify the VA the house was sold.  Well I have since purchased and sold two more homes and can’t find the HUD-1 form from my first house. It was 12 years ago and I don’t know what to do. The VA needs it to release the certificate. Is there anything I can do? Ana.

A:     Dear Ana. Bureaucracy continues to baffle me.  Although I always recommend that home sellers keep their HUD-1 (the settlement statement) for ever for tax purposes, you do not need it to prove that you no longer own that first house. If you remember the address, all you (or an attorney or even the escrow agent) have to do is go to the Recorder of Deeds office in the county where that house is, and do a title search. Since you sold the house back in 2002, there should be a deed from you and your husband to XXX; make a copy of the deed and send it to the mortgage loan officer who is working on the VA loan.

And tell him that he is wasting your time and his; he could easily have done his homework. And if this delay caused you to lose a more favorable interest rate, I would strongly protest.

Since you used the term “escrow”, you are somewhere out West. My answer applies equally to those in the rest of the country where we use the term “settlement” or “closing”.

Q: Is there such a concept as an appreciation clause in a commercial sale when the property is sold on contract such that the property is re-assessed at the end of the contract period and the difference between that figure and the agreed upon

 purchase price is then divided between buyer and seller in some agreed percentage?  Gloria.

A:  Dear Gloria.  In real estate –residential or commercial – everything is negotiable. If the buyer and seller reach agreement on such a contract, so long as both parties are competent and there is no undue pressure asserted against one of the parties, there is a binding, valid, legal and enforceable contract.

However, I question why either party would want to enter into such a transaction. If I am the seller, why would I agree to sell at a lower price if the assessment is subsequently reduced? And conversely, if I am the buyer, I don’t want to pay more, should the assessment go up.

And who will be doing the assessment? Will we have to use the “three broker” approach – namely each of us get a valuation from a respected broker, and if their valuations differ by more than 5 percent, the two brokers get a third broker to make the final assessment. This can be expensive and take a lot of time.

Yes, it is an interesting concept in theory; realistically, I doubt that it happens too often.

Q:     Can the board refuse a sale, and  also refuse to give a reason?   Terry.

A:     Terry. Since I do not know what board you are asking about, I will respond for all community association boards. First, let’s look at Cooperative Housing. Typically, any potential buyer has to meet with – and be approved by – a committee appointed by the Board of Directors; it could also be the board itself. The committee can refuse to allow the sale, for such reasons as not good credit, or unwillingness to abide by the rules and regulations of the coop. Many years ago, both Richard Nixon and Barbara Streisand were turned down at prestigious New York Cooperatives; the reason: their presence would cause commotion in and outside of the coop building.

Although there are some condos and home owner associations that allow the board to reject a potential owner, generally most such associations do not have this power. And where it does exist, usually it requires the board to buy the property at the same price as that from the prospective owner.

There are serious problem when a board has the right to reject. First, many boards have been sued for discrimination – “we don’t want blacks or jews or gays in our association”. That’s a clear violation of every human rights laws all over the country. Next, some board members wanted to profit from a sale and used the rejection as an excuse to buy the property themselves.

Must the board provide a reason for rejection? In general, this may be required in the legal documents of the association. But as a practical — and even legal –matter, I believe that if a board rejects a potential owner, both parties to the sales contract (buyer and seller) must be provided with the reason. Clearly, if a seller’s contract is rejected, and the seller took the board to court, the reason for the rejection would be required to be disclosed. Why wait until a Judge tells you to provide that information?

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