Flooring Installation Dispute - Arizona

I was in the process of replacing my carpet with laminate and the HOA president found out and said that I would be fined.
My unit is on the third floor and multiple units on upper floors (second) have already replaced their flooring to laminate even though the CC&Rs mention otherwise. They have not been fined. Here are couple of points that I think strengthen my case:-

Conflict between CC&Rs and Rules and Regulations
The CCRs mention that no unit on the second floor will install hard floor coverings. It also mentions that the rules and regulations can be modified as needed by the board to reduce noise. The rules and regulations mentions that no unit on the second or third floor will install hard floor coverings. I am wondering if this is enforceable since it conflicts with what is in in the CCRs? Even though the CCR mentions that the board can add rules and regulations to reduce noise, my understanding is that it just applies to the common areas? So the rule does not apply to third floor units which have a concrete sub-floor.

Selective Discrimination
Since I am part of the board I have access to all documents and earlier board presidents have mentioned in emails that floating floors have not been considered as hard floors in the past. Also many units on the second floor have hard floor coverings (laminate and vinyl) and they have not been fined. If I am fined should'nt all the units on the upper floors be fined as well?

I have seen atleast 3 upper floor units with laminate in them and none of them have been fined.

Do you think I have a strong case? Can these rules and regulations be enforced?

I don't see why the intent is clear since the flooring for third floor units is different from those of second floor units. Moreover, the second floor units have been explicitly specified in the CC&R whereas third floor units have not. To add third floor units to the restriction, in my view an amendment needs to be made to the CC&Rs. Otherwise one could argue that even first floor units cannot have laminate if it is a matter of intent.

And I think intent only applies to common and limited common elements , not floors within a unit. This is how I see it. Let me know if I am wrong.

they do not.

Also, I am part of the board and the board is aware that multiple upper floor units have laminate flooring. I have all the documentation that the board has including what acc requests have been submitted or rejected. If I get fined as long as everyone else is also fined that is fine. As per AZ law the fine has to be reasonable and a schedule of fines has to be submitted to homeowners.

As far as I know no schedule of fines exists in our documentation.

When I look at many law websites, it says that anything in the CC&R has precedence over what is in the R&R.

thanks John. Do you have any documentation to support this? That would help my case. That is what one of the HOA members said when we got an acc request for approval for another homeowner.

While it is more common to have a padding buffer between laminate and the subfloor, I have seen many installations of laminate directly over subfloors. They clack and creak and make lots of noise.

I have also seen installations with roll out pad or padding attached at the factory that make noise when walked on ... not as much as unpadded, but way noisier than carpet, especially when shoes are worn.

Yes I am installing 12 mm thick laminate and 2 mm underlayment. I installed it at a different unit and it seems fine from a noise perspective.

Also, even though the board can make any rules and regulations they want to control noise as mentioned in the CCRs, my understanding is this only applies to the common elements and limited common elements. So to my knowledge it doesn't apply to flooring.

Moreover both my neighbors on the second floor below have laminate and haven't filed an acc request or have one approved. So even if I can't get them on unenforceable rules I can get them on selective enforcement. Almost 30% of the upper floor units have laminate or vinyl flooring as disclosed by a past president. So the HOA has basically been inconsistently enforcing the rules over the past couple of years. No doubt there is a non-waiver clause in the CCRs, but if they are enforcing it now, they need to enforce it for everyone who already has laminate too.

Thanks. that's what I think too.

I haven't gone to an attorney yet. I will go once I receive a fine letter.

This is from California, but I would look into my state laws were I facing this situation and seeing if there is anything similar:

Relinquishment of Enforcement Rights
If an association’s board fails or refuses to enforce the restrictions, the association may ultimately lose its right and ability to enforce the restrictions based upon the following:

Statute of Limitations – The statute of limitations for a violation of a restriction is five (5) years from the time the association “discovered or, through the exercise of reasonable diligence, should have discovered the violation.” (Code. Civ. Pro § 336(b).)

The term “restriction” in this respect does not mean only those restrictions which are recorded in the CC&Rs; it also includes unrecorded restrictions such as architectural standards. (Pacific Hills HOA v. Prun (2008) 81 Cal.App.4th 1557, 1563-1564.)

Laches – Laches is an equitable defense that is used against persons who are unjustifiably slow to exercise a right or claim. The defense of laches could be used to defeat an association’s enforcement action if an association unreasonably delays in exercising its enforcement rights and that delay results in prejudice to the violating homeowner. (Pacific Hills, at 431.)

Waiver – “The right to enforce a restrictive covenant may be deemed generally waived when there are ‘a sufficient number of waivers so that the purpose of the general plan is undermined,’ in other words, when ‘substantially all of the landowners have acquiesced in a violation so as to indicate an abandonment.’” (Alfaro v. Community Housing Improvement System & Planning Assn. (2009) 171 Cal.App.4th 1356, 1380.)

http://findhoalaw.com/failure-to-enforce/

Rules can apply inside a property but my understanding is that if the CCR and Rules & Regulations documents conflict then CCR takes precedence. Moreover, I was able to dig up an ACC request that approved laminate for a unit on the third floor around 10 years ago.

That's what you bring forward. The Association approved it for others. You are not asking for anything that hasn't already been approved for others.

thanks. I know my sub-floor has atleast 4 inches on concrete. It's hard to believe that with that much concrete someone below is going to hear anything. Is that even possible? Add to that 12 mm of laminate and 2 mm of underlayment.