Advice/Ideas of what we can do against HOA and/or another tennant?

Matt,

Excessive noise is typically subjective to the individuals involved. Because of this, most Associations don't bother to even get involved unless there are complaints from more than one neighbor. Per the davis-stirling web site,Noise between neighbors "To constitute a nuisance, the noise must be such that it causes an unreasonable disturbance or annoyance".

Even when Associations do get involved, there are limitations on what an Association can do. Typically Associations are limited to applying fines for each infraction and that is only after going through the Associations due process procedure.

Your Association is probably doing what it can to enforce the rules, as notification would be the first step before holding a hearing. If your parents have never been asked to attend a hearing on the noise or if they have been asked but did not show, the Association would be unable to fine. This is because your parents would be the only witnesses to the noise and (honestly) it would become a we said, they said type of argument.

Based on your posting, it sounds like the noise is due to the members children just being children. Because of this, I think it's going to be difficult for your parents to have the Association due much more than what has been done. Had you asked for advice prior to going to the Association, I would have suggested that your parents knock on the door of the upstairs neighbor and discuss the issue and what could be done as a compromise. However, since you started by filing complaints with the Association, it tends to put people on the defensive and it may be harder to work a compromise out.

To look at this from a different angle, your parents would like to have a quiet nights sleep without being woken so early in the morning. To that end, I have some suggestions:

1) If it's a two bedroom condo, can your parents use the other bedroom?
2) Have you looked into various products available that can make that room more sound proof (do a search for condo soundproofing)?

If you do want to pursue the issue through your Association, ask for a hearing before the Board about the issue. This shows the management company that your parents are serious about the issue and they get a chance to provide evidence to the Board. For evidence, I suggest that you record the noise.

If your Association doesn't want to act (or doesn't believe that their is a noise issue) your parents may enforce the CC&Rs themselves through the courts. If they chose to go this route, they should contact an attorney and be willing to spend the time, energy and funds required. Note, the legal action would be against the upstairs neighbor directly - not the Association. If your parents choose this route they will have to have enough evidence to prove to the court that the noise is at a level to cause a nuisance (which is the same thing they would have to provide to your Association).

I live in a town home, therefore, I do understand the type of noise your talking about. I believe that it would be easier and have better results if your family looked at soundproofing rather than trying to keep children from being children.

Hope this helps,

Tim

Can they talk to the developer and switch condos? Maybe make a deal to sell them back that one if they move into another unit? IF the developer is trying to sell empty properties they may negotiate. I can't believe they sold to an upstairs unit to a family with kids. That was a bad idea and a consideration someone should have put into place.

It's pretty much impossible to cut down the noise from an upstairs neighbor due to construction issues. That's why many HOA's with an upstairs don't allow wood or tile flooring to be installed. Carpet only to help dampen the noise levels between floors. It may be best they look for a new place or negotiate moving to another available unit if they can arrange a deal.

What action you may take against whom will depend on the wording of your CC&R's. Most CC&R's that I have seen have a clause that allows an individual owner to enforce the CC&R's on his own against any other owner(s). If a similar clause appears in your parents' CC&R's and the CC&R's state the noise prohibition that you cited, then your parents would be able to take action directly against the upstairs neighbor. The provision to allow owners to enforce the CC&R's allows the HOA to decide which battles to fight and which to walk away from. If your parents have the authority to act on their own it is unlikely that a court would sustain an action against the HOA for failng to act on their complaints.

On the other hand, a few CC&R's specify that the HOA has a duty to enforce the CC&R's. In those situations, the association can be compelled to enforce the provisions of the HOA. If the HOA is required to enforce the CC&R's, then your parents could bring an action against the HOA.