Another Wood Floor Noise Post- complex

Ok, changing gears to another hot topic here. My friend and his second story condo. 10 years ago he purchased an older 2nd floor condo with a beautiful wood floor which was approximately 3 years old at the time. He’s had 9a+ blissful years, but now has better hearing downstairs neighbors who have discovered the wood flooring and associated noise. So wood floor and noise complaints have been filed. The original condos had carpet, there is nothing specific in the CCRS against wood, but there are newer methods of flooring noise mitigation which were not utilized. Questions: 1. Would 10+ years be beyond statute of limitations for being forced to remove wood flooring, or spend a fortune with sound barrier installation? 2. Can a Board pass a law mandating sound barrier be part of all wood floors, and b. Make it retroactive or not? 3. If the original wood floor was installed 13 years ago with Board approval (not sure if that was applicable), can their decision be reversed this many years later should that possibly arise? 4. If there are now numerous 2nd floor wood floors, but only those with downstairs neighbor complaints being addressed, is that a form of selective enforcement?? I know there are several other forum posts on this, but trying to get newer responses to various topics (and search hasn’t yielded all the answers). Thanks.

Do the CC&Rs refer to any other documents, like Architectural Guidelines? I believe that most condos have ARC Guidelines of SOME kind.

1. I'm not attorney, but I'd say if no one complained for 10 years, complaints by new residents below should not generate any board action about your friend's floor. I'd answer the same for #3.

2. A board can make arch. guidelines that all owners must comply with they replace their flooring. I'd say they most certainly cannot make it retroactive forcing all owners to replace their floors!

4. ARE 2nd story owners with wood floors being ordered by the Board to replace them when neighbors below complain??

In our high rise, someone rarely complains about noise above them and it's generally with a change of upstairs residents. As a board, we've not defined them as noise nuisances. We have encouraged the upstairs neighbor to add some rugs, etc., but cannot require it.

We have very strict ARC guidelines & applications for new hard surface flooring of any kind.

Thanks for quick responses. The facts are all correct as far as we know. Unknown at this point is whether prior owner obtained approval 13 years ago, did it without approval but needed it, or not required. But there is no specific rule against wood flooring, and many units now have it 20+ years later. The Board is in the process of creating new rules mandating latest sound barriers for new non-carpeted flooring, and seems intent on some type of retroactive enforcement. Several unit owners (with noise complaints) have been contacted to seek resolution of some type, with things heading toward the legal arena. Selective at this point, not inspecting each and every unit. I was hoping the statute of limitations concept would apply, even if the prior owner was required to get approval 13 years ago. If there's no statute for that, seems like there would be no statute re: prior owner liability, real estate agent, etc. Anyway, they're hoping for a peaceful non-legal resolution, with rugs and courtesy, etc, but may not be possible.

try re-naming your wireless network to "Walking around on your hardwood floors upstairs is driving me nuts"

1. This depends on how bad the noise is. Nationwide there is much case law on the subject of noisy upper level floors. Typically the lawsuits result in testing of how much noise is present. Appropriate technology is used.

2. I think a board would be making a mistake to make such a (new) rule retroactive. Even if they made such a rule, I am not sure it is consistent with the covenants. A new rule saying no hard surface floors on second story units restricts the 'enjoyment of property.' A board generally cannot lawfully restricting the enjoyment of property beyond what the original covenants restrict.

3. Maybe. See 1.

4. I would say it is not selective enforcement to only go after the owners with downstairs neighbors who complain. I would expect each floor is different enough to distinguish one upstairs owner's floor from another's.

It sounds like the covenants do not specifically prohibit hard surface floors. But the covenants undoubtedly have a nuisance clause. If the noise is bad enough, then it's a nuisance, and the downstairs residents may have a court case against the owner of the condo. If the HOA fails to enforce the covenant prohibiting nuisances, the downstairs neighbors may have a viable lawsuit against the HOA itself.

If I were on this condo's board, and given how many years have gone by without complaint, I would ask the downstairs resident to provide proof that the noise is excessive. This will be quite a chore. I would also ask to hear the noise.

Also is it possible the wood has weakened at some points and is in fact creaking a lot, due to age?

Re: Weakening- doubt it. Noisy construction to start with 25 yrs ago. I think the main issues are new downstairs owner with sensitive hearing, and addition of several kids to the upstairs unit. Nothing else has changed in 9+ years.

We dealt with a similar issue in my community. Our CC&Rs say that no hard surface flooring may be installed in the "stacked" condo units without prior written consent of the association. (The stacked condo buildings are two stories, with individual units either on the ground floor or upstairs.) A downstairs owner complained about noise from upstairs. The upstairs unit had hardwood that was installed by a previous owner without approval. Our attorney said that while it may seem unfair to hold the upstairs unit responsible for unapproved modifications done by a previous owner, the burden is on buyers to understand the CC&Rs and to verify that their homes comply. So the association would be within its rights to make the upstairs owner remove the wood floor or otherwise modify the flooring to minimize noise transmission.

So... was the wood flooring mentioned by the OP approved or not? If it was, and the first floor owner is still complaining, then the burden of proof is on the first floor owner to demonstrate that noise levels are unreasonable. In our case, "reasonable evidence" consisted of things like recordings showing decibel levels, other witnesses hearing the noise and agreeing that it was unacceptable, etc. Having said that, our attorney also commented that people who live underneath others have to expect a certain level of noise. If you're noise sensitive, then the burden is on you to choose housing that meets your needs.

That this is in the Bylaws is a bit strange. The CC&Rs are generally higher in the hierarchy of what document controls and still should be checked, as it sounds like you know.

If it is true that the owner back then needed approval to put in a wood floor along with the consent of the downstairs neighbor, and no such approval exists, then this weighs heavily in favor of the current downstairs neighbor. CathyA3's comments are wise and should be factored in, but I believe the lack of the required approval will be a deal-breaker, and the Condo has the legal right to order the owner of the upstairs unit to remove the floor. I do not think the fact that many upper units have wood flooring, yet others are not complaining, matters.

I have seen people at condos ordered to rip out their upstairs, brand new but unapproved hard surface flooring.

Thanks Cathy. Nice analysis of the issues. Still waiting to hear if any original paperwork related to the flooring installation exists, as well as purchase agreement. The children situation is interesting, and a chief cause of the new complaints against the family (no complaints by either downstairs owner prior to the kids, and they are at an age where occasionally dropping/bouncing things on wood floors is normal behavior).

I just need to get the CC&Rs and review this. Also, the statute of limitations topic still needs review, because it is in the state law. The question is does it apply if approval was mandatory and wasn't obtained, would it start the day of the first noise complaint (rather than when the floor was installed)? At my condo, many of us have balconies which were incorrectly installed and repaired 2 years after new purchase. Now we are 15+ years in and they're all rotting out, and you couldn't tell without ripping off the outside stucco- type material which was applied and covered the problem. 10 year statute, and we were told we're now out of luck. Seems like a variation of same thing.

We have the attorney on retainer, and as part of the service we get unlimited free 15 minute phone calls - it's great to be able to make sure we're thinking about things correctly. And it may be hard to believe, but they'll actually tell us if they think something would be a waste of money to pursue legally. Their motto is "Communicate, Don't Litigate".

I would imagine there is a lot more than just an occasional golf ball that is dropped. But on the other end if they just can't tolerate any type of sound whatsoever, they will never be happy in a DS.

Regarding all the others, I don't see how noise from them could be sudden. Seems to me the association wasn't super interested in flooring before and might have to grandfather in the ones that exist, or have existed for X amount of time at least, and cope with that.

I don't see how a purchaser could even know that existing flooring was supposed to be there or not.

I agree that expecting prospective buyers to read the CC&Rs thoroughly enough to understand that the flooring may be an issue, and then ask the association if it was approved, is quite a stretch - especially since condo buyers are often first time buyers. But our attorney said that the buyer would still be responsible for addressing the violation.

Another issue is that the association probably won't even find out about the unapproved flooring unless someone complains. If they deal with the issue only when there is a complaint, isn't that selective enforcement?

I'd mentioned earlier that I owned a first floor home with noisy upstairs neighbors. The original owners of that unit had installed hardwood flooring, but they were so quiet that I couldn't tell whether they were at home or not. The new owners stomped around like a herd of elephants and had three small children. I believe that no amount of soundproofing would have made the noise level acceptable to me. In other words, the flooring isn't the real issue, the neighbors are -- and there is a limit to what an association can do about that.