Noise is a difficult issue when rearing its ugly head. Here is the latest question.
“My question is if a Board Member of the HOA approves the installation of flooring in an upper condo unit but that violates the HOA governing documents, does an owner (or the other board members) have a right to make the upstairs owner change the flooring back to carpet, since the noise is unbearable now that they have renters. Also, is there a statue that says we can make them change the flooring.”
In this particular situation the governing documents require upper units to be carpeted or be covered with other sound absorbing material of comparable acoustical quality, unless the deletion of such floor covering is approved by the Board of Directors of the Association and written approval of the Unit Owner directly beneath is procured.
This is such a loaded question!
First of all, when I work with boards to update and restate governing documents, I can always say with conviction that the HOA will have fewer noise issues if the CC&Rs prohibit hard surface, laminate or other types of flooring that have higher noise transmission than carpeting with padding in the upper units. True, some carpeting and padding falls short being ideal sound deadening material but I will say every single noise transmission issue that has come across my desk in the last 20 years has been due to hard surface flooring being installed in an upper unit after carpeting is removed!!
That said, almost every board says that even though their current CC&Rs prohibit hard surface flooring in the upper units, no board has enforced it for years and owners have made the alterations so they don’t want a strict prohibition and they don’t really want to do anything about it. Some will accept language allowing the flooring only with architectural approval, but I can tell you that that language almost invites trouble, giving owners the incentive to argue or ignore a restriction or position the don’t like. Often that the board members are among those that have converted their floor coverings. And there is, of course, the possibility taking a strong position on this subject might affect the ability to get new documents approved.
Everyone seems to think that converting to wood floors is an upgrade that will bring in a good return upon sale.
Well, good luck with that! It is very possible that once the noise issue between the two units escalates, neither unit will retain its full market potential, because if noise issues are not disclosed on sale, the new buyer can come back against the seller for failure to disclose material facts!
Some units become virtually unmarketable falling victim of the action of the upstairs neighbor to “improve” their unit with hardwood or laminate floors.
Do good acoustics help under a hard surface floor? It really depends on a lot of factors including besides the obvious – the building structure!
I could write a book on this one issue but that still would not satisfy all the individual questions; but what I can do here is answer the questions in a somewhat generic form:
- The documents do matter, and under California law they can be enforced by the board or individual owners, assuming no intervening factors weaken or destroy that right.
- The form of approval is important. If the docs require written board or architectural approval then oral approval or approval by one board member should be legally insufficient but the particular circumstances as to how or when or by who the approval was given may a factor of importance.
- Getting the downstairs owner’s approval is a nice thought – however it doesn’t resolve anything if the upstairs owners actions increase the noise transmission OR if the occupants change and a nuisance develops because for whatever reason they are louder inhabitants than the prior residents.
- The passage of time after the “violation” of the documents occurs (meaning the change of the flooring) and the date of discovery are factors also. After 5 years passes the ability to require removal of flooring may be a problem; however, an ongoing nuisance should not be affected by this limitation.
Thus you will see that noise issues are not easy to resolve because the circumstances of any given situation have such important bearing on what an owner or Board can do. And it is important also to understand that the personalities involve have considerable bearing on what may or may not work – the approach may become very important. Hypersensitivity to normal noise can be a factor. And excess noise that could be minimized by certain actions can be a factor suggesting solutions less drastic that taking up the whole floor.
I have helped many folks find ways to some options with the noise issues, some with great success and others without satisfaction. Again I will say they are not usually easy to resolve (or at least I don’t hear about the ones that are easy to resolve).
Here are some things I usually recommend, at the least:
Identifying the specific violation, if there is one, and a letter addressing it, and proposed resolutions, by the offended party, then perhaps a lawyer if the other parties do not take the matter seriously. (This letter can be addressed to the HOA and the offending owner if it is an owner that is the “victim” – as opposed to the Board addressing the issue. It the Board is addressing the violation the next step might be a hearing and/or fine, and possibly a reimbursement assessment for lawyer costs if the documents allow it. Owners are supposed to by law be able to enforce the CC&Rs.
Trying to engage the other party/parties in a mediation process, or the HOA in an IDR (meet and confer) meeting, is a worthy goal and there are ways to approach these options.
Small claims court may be a viable option for a nuisance complaint. It won’t work very well if the ultimate goal is to get an owner to remove floors already installed.
Superior Court is always an option but you will need attorney representation to even have a chance, and the case may be complicated and expensive.
If you want a consultation with me, you can find out the particulars on my website at www.californiacondoguru.com.