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KASS: Condo neighbors stink up the joint

DEAR BENNY: I read your articles and have learned so much regarding condo operations, responsibilities, sales and boards. Thank you for helping me learn the finer points of condo living.

For the past four years we have suffered from an unpleasant skunky odor seeping into our condo. This goes on almost daily, on and off, from 5-11 p.m. and starts earlier on the weekends. People familiar with the smell tell us it is from marijuana, and our maintenance staff believe they know the unit from where it is coming.

After reporting the problem to our building manager, the maintenance staff sealed the areas of our unit where the smell was the worst, but the problem continued. Our building management then approached the owners of the offending unit and, without saying the odor was from pot, they communicated that smells are not allowed to escape from units. In response, the owners have sealed their unit and now run an ionic air purifier.

Despite these efforts, the odor is still very apparent in our condo, albeit reduced from the original strength. It is offensive to us, but it is also embarrassing when we are entertaining. Our children have expressed concern for our grandchildren inhaling the odors for days when they come from out of town to visit, and are now considering staying at a hotel rather than with us.

We are tired of dealing with this smell every day when we come home from work.

What is reasonable for us to expect the condo board to do? What is our responsibility? At what point do we have to accept that nothing more can be done?

Although not central to the problem, three months ago I had brain surgery and I frequently get headaches; this odor makes it worse for me. I am so frustrated by all this. – Mary

DEAR MARY: Thank you for your kind comments and I hope you are recuperating from your major surgery.

You say your headaches are not central to the problem; I respectfully disagree.

A couple of law cases dealing with smoking – whether regular cigarettes or something stronger – all place heavy reliance on the impact of the smoke on health.

I am sure your condo documents have language dealing with noise, nuisance and disturbance. You should put more pressure on your board. They got into this earlier; they can’t take the position now that it is not the obligation or the responsibility of the board.

You also have the right to file a lawsuit against that smoker, claiming a private nuisance. A public nuisance is something done that impacts a lot of people, such a company pouring waste or lead into a public water; a private nuisance is where an individual does something that impacts other individuals. While I can’t guarantee anything, I think you have a decent case.

Talk with an attorney in your area.

DEAR BENNY: My significant other and I own an expensive house, but we also have an expensive mortgage. It is over the $1 million threshold below which taxpayers can deduct mortgage interest. However, I recently read – perhaps in your column – a recent court case that allowed each owner to deduct interest up to the $1 million mark. Clearly, this would be great for us. Has the IRS given its blessing? – Marc

DEAR MARC: You are in luck. As you note, general tax law is that taxpayers can deduct interest paid on a mortgage loan, limited to $1 million of debt. They can also deduct mortgage interest on a home equity loan up to $100,000. Actually, it does not have to be a home equity loan; it can just be added to the $1 million mortgage and deduct interest on a loan up to $1.1 million.

But last year, two California homeowners went to court and successfully convinced the 9th Circuit Court of Appeals that each of them was entitled to claim mortgage interest up to the $1.1 million thresholds.

In August, the IRS reluctantly agreed. Technically, the IRS “acquiesced” to the court’s decision. That means that while it neither agrees nor disagrees with the court, it will accept the decision when analyzing taxpayer’s tax returns.

A major victory for a small number of taxpayers.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: mailbag@kmklawyers.com.

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