Laminate Floors and Fair Housing

What is wrong with laminate flooring for heavens sake?

Yes, I know, the builder puts up a paper house and to compensate for the noise he conveniently puts in ‘carpet only’. Perhaps your covenants are ‘older’ and you can argue the technology has changed. Laminate flooring floats and am sure the padding under varies in quality. Some may reduce the noise better than others, may be?. Tile or stone is another option popular in Florida, not sure about California. Marble floors are gorgeous. This may not help you any but something to think about.

Melissa, unfortunately I have to disagree with you. Fair Housing laws definitely apply to HOAs. An HOA must provide reasonable accommodation to people with disabilities, for example if an owner wants to install wheel chair ramp. The issue is very clear if a disability is visible and obvious. The fact that HOA doesn't own the property doesn't help since it's HOA's governing documens that restrict its use.

I agree with you and I think that this case is where an owner is looking for a way around rules. What I don't want to do is get our association in any trouble for fair housing violations. In California not only a tenant may go to court but can also file a campaign with FHA and get association in a lot of trouble.

Zhenya,

Perhaps the attached document issued by the Justice Department and HUD regarding reasonable modifications under the FHA may be useful. See question 6.

Unfortunately, neither of these statements are correct.

According to the Justice Department and HUD document I posted earlier, the HOA must allow exceptions to the restrictions in their CCRs if the modifications are necessary to permit individuals to enjoy normal life activities (which cover a broad range). If the disability or impairment is not obvious the individual only has to show that the impairment exists (ie., a doctor's statement) and that the requested modification is related to the impairment. The law does apply to HOA's (specifically mentioned in the law). The modifications must be made at the individual's expense (not the HOA's). I believe the HOA can suggest alternatives. Also, the individual does not have to sue. They can file a complaint with the federal agency responsible for enforcing the law and the federal agency files suit against the HOA.

‘The owner purchased the property and now wants to change the rules to satisfy their needs.(Melissa)

Melissa,

This is really not fair. People do age and people do get ill, you know. We do not know anything about the owner. Why not trying to find a way to accommodate people’s needs in such a way it would not impact their neighbors if at all possible? Does everything have to be black and white?

A PROPER substrate/under-layer for 'laminate'/engineered flooring usually costs MORE than the inexpensive flooring itself.

The proper under-layer will be VERY sound resistant ... probably quieter than 'cheapo' carpeting.

The real issue is noise transmission, NOT material choice.

However ... it is EASIER to enforce 'knee jerk' rules ..............

Melissa,

You're way out of your league on this one. This is not a state issue, it is definitely a federal issue and it does fall under the FHA no matter how you slice it. If you had taken the time to read what I had posted earlier, you would have learned that. However, since you didn't, I'll post some of the sections from that document here. The emphasis is mine:

"A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas. A request for a reasonable modification may be made at any time during the tenancy. The Act makes it unlawful for a housing provider or homeowners’ association to refuse to allow a reasonable modification to the premises when such a modification may be necessary to afford persons with disabilities full enjoyment of the premises."

"Courts have applied the Act to individuals, corporations, associations and others involved in the provision of housing and residential lending, including property owners, housing managers, homeowners and condominium associations, lenders, real estate agents, and brokerage services."

"When a person with a disability believes that she has been subjected to a discriminatory housing practice, including a provider’s wrongful denial of a request for a reasonable modification, she may file a complaint with HUD within one year after the alleged denial or may file a lawsuit in federal district court within two years of the alleged denial. If a complaint is filed, HUD will investigate the complaint at no cost to the person with a disability.

"The Civil Rights Division of the Justice Department brings lawsuits in federal courts across the country to end discriminatory practices and to seek monetary and other relief for individuals whose rights under the Fair Housing Act have been violated."

You should also be aware that if any provision of any CCRs (or any other contract, for that matter) violates any law (whether it be a federal, state, or local law), that provision is unenforceable.

A further thought-

If laminate flooring is allowed, that does NOT eliminate the right of the neighbor below to have "quiet enjoyment" of their property. If there were a problem, it seems to me that the HOA and downstairs resident would have the right and duty to enforce this. With fines, lawsuits, etc.

This might provide a route for requiring the allergic resident to install sound-deadening.

It also might provide a route for denying (it's not reasonable if it adversely impacts a neighbor) or requiring the sound-deadening (as a reasonable modification).

Hi Zhenya,

I completely understand. Having lived in high rises and subject to noise issues, sound abatement is a very important matter. I have personally experienced a situation which became unbearable when an upstairs unit removed carpeting and replaced it with marble flooring. BTW, it looked beautiful but the sound transmission for every movement within the above unit resounded to the lower unit with a magnification of five times normal noise levels. These were newly constructed condos with approx 3,000 sq feet per unit in a 40 story hi rise. Unfortunately, the remedy for the owner was very costly (over $50,000) and entailed removal of the marble and a new substrate. These were friends and unfortunately they had not read the documents prior to the marble installation.

Now, I am living in a condo with 30 plus buildings and two stories in each building. Our declarations address the issue as follows:
...............................................................
Replacing carpet with Tile or Hardwood Floors. No owner, occupant or any other person may replace carpeting with a tile, marble, vinyl, hardwood floor or other hard surfaced flooring material, on the interior of a Unit which is located above another unit without first obtaining written approval of the ARC as set forther in paragraph 16. Among other factors, the ARC, as applicable, may consider whether the change will cause noise to any unit below which will exceed the average noise level in units below units with carpeted floors and that the weight of such proposed flooring is appropriate and will not cause problems to the structure or subflooring.

The owner applying for such approval shall provide the ARC with information regarding these factors as well as other information requested by the ARC regarding the proposed flooring and its effect; provided, however, the noise level requirements shall be considered to be met if the owner provides a sound transmission test that the proposed flooring will create a noise level less than a standard level set by reasonable regulation of the ARC as applicable. Notwithstanding the above, at least 80% of the unit (excluding the kitchen and bathrooms) shall be carpeted unless the flooring is soundproofed so as not to exceed the noise level in units with carpet floors.
.......................................................................
Our ARC guidelines expand the above with:
A sound test, paid by the owner and in the unit making the application, is required prior to removing the carpet from the unit. A guarantee must be provided with the owner guaranteeing to restore the carpet if the noise level exceeds the initial sound test with carpet. The noise level must be verified by a final sound test paid by the owner.

Second floor units: Tile or vinyl may be installed in kitchens and baths. Installation of tile, in kitchen or baths, requires a sound proofing material (¼ cork underlayment) to be installed prior to the installation of tile. No hardwood or laminates are allowed in kitchens and baths.
.....................................................................

FWIW, I carefully read our documents regarding this matter when considering to purchase or not and particularly because of my past experience. I believe you can "reasonably" accomodate the "allergic to carpet" owner if you followed the above or similar quidelines. The peaceful existance to the below unit owner is equally important and simply asking for removal of the flooring upon moving out will not address any suffering in the meanwhile for the lower unit owner.

I hope this saga gives you food for thought.....

Ann

Melissa, is there a reason why you keep repeating the same factually wrong information over and over again, even after you've been provided with facts proving that you are wrong.

Federal Fair Housing laws apply to HOAs the same as they apply to any other entity or person in any business related to housing (landlords, financing companies, management companies, property managers, HOAs, real estate agents, etc.)

An HOA can and should have a right to setup and enforce its own rules as long as they don't violate any federal, state, or local laws. Those laws will always prevail. Following your logic we may get an association that has a rule for example not allowing kids (not talking about over 55 communities), or not allowing certain ethnicity or race. Federal laws exist exactly to prevent that.

HOAs don't offer any financing, ever. So lending has nothing to do with the issue. HOAs establish and enforce rules for their communities, nothing else.

A sound test, paid by the owner and in the unit making the application, is required prior to removing the carpet from the unit. A guarantee must be provided with the owner guaranteeing to restore the carpet if the noise level exceeds the initial sound test with carpet. The noise level must be verified by a final sound test paid by the owner."

This provision does not talk to me. There should be some standards, may be? Gosh,this is getting complicated and can prove to be quite costly.

I'm not sure where that comes from, unless it's from the CCRs of John's HOA.

I'm also not sure that the feds would allow this requirement. The FCC doesn't take too kindly to restrictions which burden the individual with extra expense, so maybe HUD and the Justice Department don't either.

I think people also need to understand that allowing an exception to comply with some federal requirement doesn't mean that the HOA has to allow it for everybody. Some people may think that laws against discrimination are unfair or are in themselves discriminatory. If someone doesn't like the laws, they should complain to their Congressman. Otherwise, we have to abide by them.

Hi Petunka,

Around $1,000.

I might add that this stipulation has worked very well for us. I've seen similar language in at least five condo docs and while it seems extraordinary to a HOA, a COA in this area deals with this frequently. We don't have fence, garbage cans, plants, issues but living in close proximity brings about a plethora of other issues! Personally, it is worth it to me. I enjoy all of the amenities and freedom from maintenance. I travel a lot. Prior to the past ten years, I've always owned single dwellings which suited my life style at that time.

Additionally, I do not believe any legal authority (HUD,ADA or any of the alphabet soups) would think it is unreasonable to request this kind of testing. It is fair to other unit owners as well as the person in need; whether it be for aesthetic or medical needs. Reason isn't foremost.... fairness is!

Ann

Ann, thank you. I do not think $1K is unreasonable. I too am sensitive to noise and would certainly do it for others, if required.

Petunka and Brad.....

I don't want to hijack this thread but I think the info below is pertinent and applies to the OP ...... regarding the ADA and FHAA and specifically condo associations. I'm sharing this because I've often heard ad nauseum "must comply with ADA" and additional myths regarding the FHAA.

Here is a link to Attys Becker and Poliokoff which addresses the issue...DOES ADA AMERICANS WITH
DISABILITIES ACT AFFECT YOUR RESIDENTIAL COMMUNITY?

http://www.becker-poliakoff.com/pubs/newsletters/cu/cu_2007_v9.pdf
.......................................................................................
Excerpted from the article.....

Subchapter III of the ADA regulates private entities
which fall within the definition of a “public accommodation”.
...................

One thing is, however, relatively clear. Traditional residential condominium associations are not subject to the ADA.
However, they are subject to the Fair Housing Amendments Act of 1988 (FHAA). (See, 42 USC § 3602, 1998). The FHAA
prohibits condominium associations from discriminating against people on the basis of handicap, and requires
condominium associations to permit disabled persons to make reasonable modifications to the condominium property, so as to enable the unit owner’s enjoyment of the premises. However, unlike the ADA, the FHAA provides that
IF MODIFICATIONS ARE TO TAKE PLACE, THE MODIFICATIONS ARE AT THE EXPENSE OF THE REQUESTING OWNER. Further, the association can establish reasonable conditions regarding the modification.
Unlike an association’s ability to “amend out” of the definition of a Public Lodging Establishment (discussed above) and consequent application of the ADA, associations cannot “amend out” of the FHAA.

Even a community which prohibits rentals altogether is subject to the FHAA. However, the association is not obligated to grant every request made by a disabled unit owner. Every request for a “reasonable modification” depends upon the specific facts involved and must be addressed on a case by case basis.

HTH and hope you don't think this is a stretch from the OP's original inquiry.
Ann

Ann,

What you posted pretty much agrees with the information I posted earlier. Also worthy of note are the sentences, "However, the association is not obligated to grant every request made by a disabled unit owner. Every request for a “reasonable modification” depends upon the specific facts involved and must be addressed on a case by case basis."

Clearly, the requested modification has to be related to the disability that is claimed. The Justice Department document I attached in an earlier post also gives an example of a request that can be denied because this requirement is not met.

I think the important thing here is that one shouldn't simply dismiss such a request on the assumption that the individual is merely trying to get around the restrictions. The request may well be based on a legitimate need and federal law requires the association to seriously consider the request to find a solution that solves the problem and will be satisfactory to the association as well. It may mean making an exception to some rule, regulation, or even the CCRs, but the fact that such an exception is made to be compliant with federal law should be sufficient to deny similar requests by individuals who do not qualify for such an exception.

Thank you all for replying to my original message. Bruce, a special thank you to you for posting the attachment.

Some have asked why I don't want to solve the problem as a whole, bur rather deal with the exception. The fact of the matter is that I do want to solve it. I personally believe that HOAs shouldn't control people's lives and definitely shouldn't interfere with how they decorate their homes. With that said current CC&Rs prohibit hardwood floors and there are certain members of the board that are not willing to even consider it. I've tried many things, but so far haven't succeeded. In addition there is no support to spend the money and go through the whole ordeal of CC&R amendment. In California it requires a secret ballot and our bylaws require a majority of owners (not a majority of quorum, but majority of all owners) to pass it.

In this particular situation I have no way of knowing if the person's disability is real or made up. Obviously it's not visible since we are talking about allergies. I asked the questions because I think that a risk of a legal problems if we deny the request greatly outweighs any issues arising from granting it. At the same time I don't want to just rubber stamp the approval.

Here's the deal with laminate/wood flooring. It's NOT just decorative. So this isn't a decor issue the HOA is trying to enforce. It is more of a functional and in this case a health issue. However, show me proof where wood/laminate flooring reduces allergies and allergies fall under a handicap...(I digress.) The issue lies with noise/disturbance installing the flooring would cause other neighbors/members. A serious consideration and the most important. I have lived in apartments with non-carpeted surfaces upstairs and the noise level was really disturbing.

We have to also recognize that the HOA doesn't actually own the property. The MEMBER of the association OWNS it. That member is responsible for their own property. The HOA is responsible for making sure the rules created by the members of the HOA are enforced. That means when you bought the property and became a HOA member, you agreed to abide by the rules of the HOA when taking care of your property. The intent is to keep home values at appropriate levels.

This is also why the fair housing law wouldn't apply as a HOA is a group of individual homeowners who have agreed to create and abide by their own set of rules. A HOA isn't an entity like an office building. It's just a group of like-minded individuals with a vested common interest. Which translates the owner knew when purchasing and agreed to the rules of the HOA. If they had an issue with carpeting, then that should have been addressed during the SALE of the home. NOT after they took possesion of the home. I don't have to make my home abide by any Fair housing or ADH rules so why would a HOA?

Notifying FHA will do severe damage to the HOA and potential buyers. If indeed this was a violation, it would then subject ALL the owners to making the corrections or face loan reprucutions. Meaning don't expect the Federal government backed loan programs to be available until the HOA is working in accordance to the law. Which translates that ALL the owners would have to contribute ALOT of money to the HOA's budget to make it compliant. Do you want to pay a special assessment or be subject to less available loan programs to sell your house? Don't think soo...It's like cutting off your nose despite your face.

Overall, if you want the rule, then change the rule for ALL. Otherwise, Deny..deny...deny...Don't worry about a lawsuit threat as it will just be empty or not worth pursuing...Especially since their excuse doesn't hold water...

However, show me proof where wood/laminate flooring reduces allergies and allergies fall under a handicap...(I digress.)

Melissa,

you simply do not understand that allergies are all about weak immune system.

Thanks James...It is NOT that I don't believe that carpet fibers can't be a source of allergens or effect one's health. Matter of fact, I have just replaced my entire house central air venting system in part due to possible mold/allergen concerns myself. It's an old system never properly installed and a very nasty source of air supply. I've also replaced my flooring but with a very pet-friendly carpet/pad. So this isn't something I haven't been involved in first hand for the last few months... I have a 2 story older home...

My entire issue with is situation is that this "allergy" handicap/Fair housing laws doesn't hold water. It is clearly a tactic of a homeowner who wants to install wood flooring in their home. Guess what? Wood flooring may be MORE attractive to more homebuyers. Which means this owner when they go to sell will have a MORE attractive home to sell and offer it at a higher price than the other homes. It's all about comparing apples to apples and with this modification it would become an orange...

In order to prevent or control this from happening, I say change the CC&R's referencing this rule by ALL the membership. Don't allow a special allowance because of this person's made up threat. This is a made up empty threat grabbed onto by straws. Believe me, I ran a HOA successfully for several years. If I wasn't threatened to be sued every month, I knew I wasn't doing my job...How many lawsuits ever actually happened? NONE!!! This person just needs to follow the proper channels and present the idea as a change of the rules for the WHOLE membership to change the rule. NOT the exception...

By the way...If you sue your HOA, your suing yourself and your neighbors...So whatever action this person did do, would effect them and everyone in the HOA. So why not just stop and redirect the issue back to the HOA to look into updating their documentation? A HOA is to be governed by it's people for it's people, and if the people want laminate flooring then by golly VOTE for it!!!

Sorry, I don't do internet searches for internet information....I don't believe much I see on the net. Show me how the Fair Housing act or ADA can be enforced onto a club? A HOA does NOT provide housing to anyone. A HOA is NOT a tangible item. It is an ASSOCIATION of owners with a vested interested in maintaining property values.

If the HOA owns a clubhouse or other such building/facility, then that has to be compliant to the laws. However, an individual member's home, doesn't. It is NOT owned by the HOA but it's individual member. How hard is that to understand? Seriously? It is NOT a federal case. My home is NOT a federal case and I don't have to install a wheelchair ramp or handrails because someone with a handicap may come to visit. Same with flooring because I may have allergies. If the rules that my home is managed by says "No laminated flooring" it is NO laminate flooring unless I address the ENTIRE HOA and request that rule be changed.

Besides, this doesn't seem like "fair housing" if this request is granted. Not very fair if I want laminate flooring because I like it whiile someone else gets it for other reasons. IT IS NOT A FEDERAL CASE PERIOD...STOP MAKING IT ONE!!!

Unfortunately someone will read your prior posts and might believe them. I wonder if you don't believe anything you see on the net at all. Apparently you don't even believe multiple documents/links provided here that clearly state that HOAs are govern by the Fair Housing Act. One of those documents is actually issued by the Department of Housing, but that doesn't matter to you.

Tim,

Thanks for posting these. Interesting. I saved a couple to my library.

It's interesting to note how one federal law applies, but another doesn't. It makes you wonder if the responsible agencies are part of the same government.