Footfall noise and HOA does not have Architectural Guidelines

Dear HOA Community Forum--

I recently purchased a condo, and immediately after I acquired the unit, I started to hear footfall from the unit above me. In casual dialogue with the Board President, she alluded to the fact that she was aware that the Owner above my unit had installed hardwood flooring without using the correct underlayment, or any underlayment for that matter. As you probably guessed, the Owner does not live in the unit as he rents the unit to a family of 5 (including 3 teenagers and a small baby). The footfall has become so unbearable that some of my guests are embarrassed to say anything because it's that bad. I have decided to lodge a formal complaint, and in drafting my written correspondence, I tried referencing the HOA's CCR's, and to my dismay, I noticed that the HOA does not have any set of Arch guidelines in their CCR’s. My question is: can I reference the Davis-Stirling Act website to cite specific violations? Does the Davis-Stirling act supersede the HOA CCR's or lack thereof?

Please help a desperate Condo Owner.

Thanks,

Berry

Joe,

From what I have seen elsewhere there may be a section in your declaration regarding flooring in upper-story units. Some declarations address the issue in terms of what may be put down and others address it in more technical terms, specifying a sound transmission class rating. See what you have.

It also appears that you just recently purchased this unit. Did the seller disclose this problem?

To look at it from a different perspective, it may be easier to simply try soundproofing the ceiling. I offer no product endorsement (as I've never used them) but here are some link.
Perhaps they will be helpful:

CALIFORNIA NOISE INSULATION STANDARDS from CA Administrative Code

Soundproofing Walls & Ceilings A manufacturer's site

Subject: Unit owner rights thread on this forum

How to Soundproof an Existing Ceiling article in San Francisco Gate

Soundproofing Basics

as you are in CA:

The underlined bold section will apply to your situation !

CALIFORNIA NOISE INSULATION STANDARDS
(California Administrative Code, Title 25, Chapter 1, Subchapter 1; Adopted February 22, 1974)
Article 4. Noise Insulation Standards
1092. Noise Insulation Standards
(a) Purpose. The purpose of this article is to establish uniform minimum noise insulation performance standards to protect persons within new hotels, motels, apartment houses, and dwellings other than detached single-family dwellings from the effects of excessive noise, including but not limited to hearing loss or impairment and persistent interference with speech and sleep.
(b) Application and Scope. The provisions of this article relating to noise insulation performance standards apply to new hotels, motels, apartment houses and dwellings other than detached single-family dwellings.
These regulations shall apply to all applications for building permits made subsequent to the effective date of these regulations.
These regulations shall be effective 6 months after the adoption by the Commission and Housing and Community Development.
(c) Definitions. The following special definitions shall apply to this article as applicable:
(1) Impact Insulation Class (IIC)-A single number rating for ceiling-floor construction that represents the ability of the construction to isolate impact noise, where measurement procedure is based on ASTM E492-73T and as defined in UBC Standard No. 35-2.
(2) Sound Transmission Class (STC)-A single figure rating for floor-ceiling and interior wall partition construction that represents the ability of the construction to isolate airborne noise, where measurement procedure is based on ASTM E90-70 or ASTM E366-71 and as defined in UBC Standard No. 35-1.
(3) Detached Single-Family Dwelling-Any single-family dwelling which is separated from adjacent property lines by 3 feet or more or is separated from adjacent buildings by 6 feet or more.
(d) Sound Transmission Control Between Dwelling Units.
(1) Wall and Floor-Ceiling Assemblies. Wall and floor-ceiling assemblies separating dwelling units or guest rooms from each other and from public space such as interior corridors and service areas shall provide airborne sound insulation for walls, and both airborne and impact sound insulation for floor-ceiling assemblies.
(2)Airborne Sound Insulation. All such separating walls and floor-ceiling assemblies shall provide an airborne sound insulation equal to that required to meet a Sound Transmission Class (STC) of 50 (45 if field tested) as defined in UBC Standard No. 35-1.
Penetrations or openings in construction assemblies for piping, electrical devices, recessed cabinets, bathtubs, soffits, or heating, ventilating or exhaust ducts shall be sealed, lined, insulated or otherwise treated to maintain the required ratings.
Dwelling unit entrance doors from interior corridors together with their perimeter seals shall have a Sound Transmission Class (STC) rating of not less than 30 and such perimeter seals shall be maintained in good operating condition.
(3) Impact Sound Insulation. All separating floor-ceiling assemblies between separate units or guest rooms shall provide impact sound insulation equal to that required to meet an Impact Insulation Class (IIC) of 50 (45 if field tested) as defined in UBC Standard No. 35-2. Floor coverings may be included in the assembly to obtain the required rating, and must be retained as a permanent part of the assembly and may only be replaced by other floor covering that provides the same sound insulation required above.
(4) Tested Assemblies. Field or laboratory tested wall or floor-ceiling designs having an STC or IIC of 50 or more as determined by UBC Standard 35-1, 35-2 or 35-3 may be used without any additional field testing when in the opinion of the Building Officials the laboratory tested design has not been compromised by flanking paths. Tests may be required by the Building Official when evidence of compromised separations is noted.
(5) Field Testing. Field testing, when required, shall be done under the supervision of a person experienced in the field of acoustical testing and engineering, who shall forward test results to the Building Official showing that the minimum sound insulation requirements stated above have been met.
(6) Airborne Sound Insulation Field Tests. When required, airborne sound insulation shall be determined according to the applicable Field Airborne Sound Transmission Loss Test procedures of U.B.C. Standard No. 35-3. All sound transmitted from the source room to the receiving room shall be considered to be transmitted through the test partition.
(7) Impact Sound Insulation Field Test. When required, impact sound insulation shall be determined in accordance with U.B.C. Standard No. 35-2.
[Note: Excerpts from the 1973 U.B.C., Appendix Chapter 35, reproduced with permission of International Conference of Building Officials, 5360 S. Workman Mill Road, Whittier, California.]
(e) Noise Insulation from Exterior Sources.
(1) Location and Orientation. Consistent with land use standards, residential structures located on noise critical areas, such as proximity to select system of county roads and city streets (as specified in 186.4 of the State of California Streets and Highways Code), railroads, rapid transit lines, airports, or industrial areas shall be designed to prevent the intrusion of exterior noises beyond prescribed levels with all exterior doors and windows in the closed position. Proper design shall include, but shall not be limited to, orientation of the residential structure, set-backs, shielding, and sound insulation of the building itself.
(2) Interior Noise Levels. Interior community noise equivalent levels (CNEL) with windows closed, attributable to exterior sources shall not exceed an annual CNEL of 45 dB in any habitable room.
(3) Airport Noise Source. Residential structures to be located within an annual CNEL contour (as defined in Title 4, Subchapter 6, California Administrative Code) of 60 require an acoustical analysis showing that the structure has been designed to limit intruding noise in the prescribed allowable levels. CNEL's shall be as determined by the local jurisdiction in accordance with its local general plan.
(4) Vehicular and Industrial Noise Sources. Residential buildings or structures to be located within exterior community noise equivalent level contours of 60 dB of an existing or adopted freeway, expressway, major street, thoroughfare, railroad or rapid-transit line shall require an acoustical analysis showing that the proposed building has been designed to limit intruding noise to the allowable interior noise levels prescribed in Section 1092 (e) (2).
Exception: Railroads, where there are no nighttime (10:00 p.m. to 7:00 a.m.) railway operations and where daytime (7:00 a.m. to 10:00 p.m.) railway operations do not exceed four (4) per day.
(f) Compliance.
(1) Evidence of compliance shall consist of submittal of any acoustical analysis report, prepared under the supervision of a person experienced in the field of acoustical engineering, with the application for building permit. The report shall show topographical relationship of noise sources and dwelling site, identification of noise sources and their characteristics, predicted noise spectra at the exterior of the proposed dwelling structure considering present and future land usage, basis for the prediction (measured or obtained from published data), noise attenuation measures to be applied, and an analysis of the noise insulation effectiveness of the proposed construction showing that the prescribed interior noise level requirements are met. If interior allowable noise levels are met by requiring that windows be unopenable or closed, the design for the structure must also specify the means that will be employed to provide ventilation and cooling, if necessary, to provide a habitable interior environment.
(2) Field Testing. Only when inspection indicates that the construction is not in accordance with the approved design, field testing may be required. Interior noise measurements shall be taken under conditions of typical maximum exterior noise levels within legal limits. A test report showing compliance or noncompliance with prescribed interior allowable levels shall be submitted to the Building Official.
Where a complaint as to noncompliance with this article requires a field test to resolve the complaint, the complainant shall post a bond or adequate funds in escrow for the cost of said testing. Such costs shall be chargeable to the complainant when such field tests show that compliance with these regulations is in fact present. If such tests show noncompliance, then such testing costs shall be borne by the owner or builder.

General Construction Info Re: Footstep Noise

Floor coverings
It is relatively easy to achieve high impact insulation
class ratings by using carpet and pad. Medium quality ratings
are achievable with a vinyl floor surface on a 1/2 inch rubber
mat. When hard surface materials such as quarry tile, marble,
or hardwood floors are installed, low impact ratings are
obtained unless relatively thick (1 inch) isolating underlayerments
are utilized. A number of products are commercially
available, which are intended as resilient underlayments for
hard surfaced flooring. Thin layers of resilient material such
as fiberglass board, cardboard-like materials, and wire mesh
mats can raise the IIC ratings modestly, three to five points
Fig. 1. Types of floor-ceiling assemblies for medium quality STC ratings
Fig. 2. Isolated-composite floor-ceiling
38 Acoustics Today, January 2007
above minimum code, but seldom provide sufficient deflection
to achieve the impact isolation necessary for condominium
construction. Thicker fiberboard or composite rubber
mats give better results.
A medium quality composite floor construction, shown
in Fig. 2, might consist of 3/4 inch hardwood flooring on a 1
inch thick resilient underlayer, on 3 inch concrete on steel
deck on joists. When combined with a double 5/8 inch drywall
ceiling supported on hat channel and neoprene isolators
these constructions can provide IIC ratings in the medium
quality range.
Where the appearance of wood or tile is desired, the
hard surface can be used in non-walking areas such as within
1 to 2 feet (0.3 - 0.6 m) of a wall with carpet installed where
walking traffic occurs. In kitchen and bathroom areas, hard
tile over a thick backing material can provide reasonable IIC
ratings when combined with a point-mounted resiliently
suspended ceiling. In all cases, engineers should refer to laboratory
tests published by the manufacturers.

@Larry--

In reviewing my CCR's I found the following language:

4.03 Interior of Units.
Subject to the provisions of Sections 4.04 and 15.01 hereof, each Lessee shall maintain in clean and sanitary condition and in good repair the interior of his Unit, and each Lessee shall have the exclusive right to paint, repaint, tile, wax, paper or otherwise furnish and decorate the interior surfaces of the walls, partitions, ceilings, floors, windows and doors within his Unit and the furniture and furnishings included therein; provided, however, that in the event a Lessee shall do anything with respect to his Unit that might have the effect of increasing the level of noise or sound that can be heard outside of his Unit during normal use and occupancy of his Unit, including but not limited to the replacement of carpeting with tile, parquet or other hard floor covering, he shall be required to take, at his own expense, all reasonable measures to deaden, insulate and otherwise decrease the level of such noise or sound to the minimum level reasonably possible. Each Lessee shall keep clean and in good condition the interior and exterior of the windows of his unit and shall not replace the glass in such windows except with glass of a similar color and quality to that which is supplied with the Unit.

I'm thinking I can use part of this language as leverage to launch my complaint!

What are your thoughts?

Joe, you don't need a war chest yet and don't go in with guns a blazing. It will only hurt the process. As was suggested, meet with the board to discuss the problem, be proactive by 110% with them. And don't throw the one person who admitted to knowing about it under the bus yet either. Have the initial meeting and see what they say first, then lead them to the solution you want to have. Do not demand anything at this time! Good luck!

We're in a condo high rise too, JoeS, and we also have some general guidelines in our CC&Rs similar to yours. These refer Owners to our Architectural Guidelines which have been developed & revised over time and have very specific guidelines for hard surface floor installation. It is a separate document from the CC&Rs.

Does your HOA have an Architectural Committee? Our CC&Rs require one.

Do you have a property mgr.? If so, write a certified letter to the board of Directors c/o the PM asking them to meet with you to discuss the improper flooring above you. Ask them to place this matter on their next meeting agenda. Or ask them to please convene an executive session about this matter. Definitely cite your CC&R above. Keep PitA's as a back up. Ask the board to send a letter to the Owner of the unit above demanding compliance with your CC&Rs (and any Arch. Guidelines).

There is NO reason why you should have to put up with this racket!

As someone else suggested, do not refer to the person who said they knew about it--that will NOT help you.

Meantime, find the annual budget letter that the board is required to send to Owners per the CA Davis-Stirling Act. It's also includes others materials, and as required by D-S, it MUST include a summary of your HOA's archt. Guidelines.

I'd say these should be your first steps. You, indeed, may have a case against the seller of your unit for not disclosing the noise nuisance that's against your CC&Rs. But try cheaper steps first.

Curious: How many condo units are there? How many are on your Board?

BTW, re: Bob from Up North, CA has no different legislation for condos than from other types of HOAs. All are subsumed under the category Common Interest Developments (CIDs) whether incorporated or not and are subject to the Davis Stirling Act.

@LarryB13:

After reviewing my CCR's, I found the following language which I believes speaks directly to my issue:

4.03 Interior of Units.

Subject to the provisions of Sections 4.04 and 15.01
hereof, each Lessee shall maintain in clean and sanitary
condition and in good repair the interior of his Unit, and each
Lessee shall have the exclusive right to paint, repaint, tile,
wax, paper or otherwise furnish and decorate the interior
surfaces of the walls, partitions, ceilings, floors, windows and
doors within his Unit and the furniture and furnishings included
therein; provided, however, that in the event a Lessee shall do
anything with respect to his Unit that might have the effect of
increasing the level of noise or sound that can be heard outside
of his Unit during normal use and occupancy of his Unit,
including but not limited to the replacement of carpeting with
tile, parquet or other hard floor covering, he shall be required
to take, at his own expense, all reasonable measures to deaden,
insulate and otherwise decrease the level of such noise or sound
to the minimum level reasonably possible. Each Lessee shall keep
clean and in good condition the interior and exterior of the
windows of his unit and shall not replace the glass in such
windows except with glass of a similar color and quality to that
which is supplied with the Unit.

So, Joe have your read the budget package your HOA was required to send you no later than 30 days before your new fiscal year? If you bought your condo after that time, that package including the mandatory Arch. Guidelines, should have been provided to you in escrow by the seller via the escrow or title officer or the selling realtor.

If there is an open board meeting before your letter to the board gets handled, attend the meetings and ask your question during Open forum, which is required in CA. Be polite and ask the board prez where you can find rules, convents or guidelines for hard surface flooring.

I don't know, Bob Up North. You might go to the CA attorney's site, davis-stirling.com, and refer to cooperatives or whatever in the Main Index. But I'm not sure how it relates to the OP.

"I don't know, Bob Up North. You might go to the CA attorney's site, davis-stirling.com, and refer to cooperatives or whatever in the Main Index.

But I'm not sure how it relates to the OP."
Thanks : actually he is quoting references to "lessee", ( but it may be that Davis-Stirling also addresses (proprietary lease) cooperative scenarios along with condo platforms which apparently the Act apparently lassooed in 1985. Actioning co-operatives may be tougher. very interesting stuff

I am not entirely sure what suggestion you are referring to but if I were in this situation I would be all over the seller's ass. And the realtor, too.

In my state, and I cannot imagine California is any less stringent, a seller is required to disclose defects or problems that would cause a reasonable person not to purchase. The situation the OP describes is unbearable and no reasonable person would knowingly purchase this unit unless they were totally deaf. The OP lived in the unit less than a week before contemplating action against the unit above him. The seller had to have known about the problem and that may be the very reason they sold out.

@KerryL1

Thank you for your response. I am almost 100% certain that the Seller and her Agent were all aware of this issue and did not disclose it. The footfall is pretty bad, and so I am using an audio device to record the noise every time I hear it. However, I plan to invite the Board President to my unit so that she can listen for herself. Once she identifies that it's a serious issue, I will have her place this item of business on the agenda and allow the Board to deliberate on the issue. I think it may also be a good time to adopt a set arch guidelines to better inform Owners before they plan on installing any type of flooring.

You have all been so helpful. I sincerely appreciate it.

Best,

OK, I can now see how you're moving ahead, Joe.

Since the Prez is the one (for Larry: per the O.P's first post) who told you she was aware of the problem floor, I'd be concerned that she's the only one you're inviting to listen to the noise. She might feel backed into some kind of corner. In other words, I'm thinking someone else should accompany her. As asked previously: do you have a property mgr.? That would be a good person.

I also would like a reply to my question about whether or not you received the 2015 budget, which MUST include Arch. Guidelines in CA?

I very much like your idea of bringing up the topic of the legal necessity (in CA) of having arch. guidelines. It'd be great if you offered to chair an Arch. Committee that would prepare Arch. Guidelines as it would show your interest in your entire community not just your own problem.

I think that sometimes when other posters seem harsh, it's because they don't see how multi-story buildings are different than detached homes.

Recall that PitA offered some valuable resources, but his CAVEAT EMPTOR remark doesn't fit your problem. How can a prospective buyer know about a existing noise nuisance without pounding on neighbors doors--before you even own??-- and asking if they hear too much noise, or???

As to the other remark, your Board IS required to enforce your CC&Rs, which clearly state general guidelines against noise transference from improper floors. Now if your Board refuses to act, then you'd have to go to the courts and also after the previous owner & realtor.

We had a similar noise problem here a few years ago where an owner insisted that the unit above had become so noisy with footfalls that he was convinced an improper floor had been installed. Turned out that no change had taken place and that he had the bad luck of new residents moving above him. The woman wore her high heeled shoes o a lot. The new male just had very heavy footsteps,. We (the Board) advised him to have a friendly chat with them, which he did. Problem significantly reduced. But he was dealing with two adults, not children.

Finally the language of "lessees" in your CC&Rs is confusing, as bob noticed, and suggests a co-op. But we've known of several building built to be condos and used as apartment buildings till the market improved. Could be that explains the odd language. How old is the building? How many units?

or an Acoustical Engineer for documentation of issue followed by the local Code Compliance department as they may not be in compliance of the building code(s)

or

sell and move along

but

next time CAVEAT EMPTOR

If the association had ARC guidelines that included flooring guidelines and the Board president knew the owner installed without filing the proper paperwork, the Board and the association would be on the hook. If the association has no guidelines, then its between you and the owner above you. You could go back to the agent representing the seller, but I can't see anything coming from it.

As far as what is required annually, only a summary of the requirements of the architectural approval process, not the actual guideline themselves. Some of the guidelines are up to 50 pages or more. They should be made available on a website for the members.

the exact quote was: next time, caveat emptor

this was after supplying 5 pages of specifications and codes re: interior noise

the unit above and/or the building itself is in violation of code

code is the MINIMUM requirement for human occupancy

the OP purchased into said building

imo: the OP's only choices are:

attorney

or

relocation

Never-Neverland for noise complainers :

the Board/ co-op administrator /landlord is directly legislated to be 'guarantors' or 'insurers' of compliance. (". . . shall comply and obtain compliance with the Act, Declaration, by-laws . . . " ).

Further (in that Neverland) noise sources would NOT have the exemptions of human rights legislation in place. ( No defences of such as worded/applied to require some communities to suck up rule-breaking right up to the point of 'undue hardship', including on grounds of family status ( 'why shouldn't my kids bounce basketballs at midnight outside ? ' ) or 'physical disability' ( "My " * * *-challenged family member's shrieking & furniture smashing is something all the neighbours have to suck up regardless of rules ").

pps.



Requesting documentation of valid Certificate of Occupancy is what most buyers do NOT perform as part of Caveat Emptor. If flooring does NOT meet code then the 'structure' is NOT fit for human occupancy.

(Most banks don't check either - FHA, however, actually inspects)

In a condo or co-op the BOD may be liable for non action regarding a 'voided' C of O (the president was aware of the noise and potentially non compliant flooring, but the BOD remained inactive).

THEN the attorneys get involved.

ALWAYS BEWARE ~ It is the Western business model