HOA not enforcing hardwood flooring CC&Rs

If your documents say the board can grant a variance and that's what they did, I suppose the next step would be to duke it out in court to show that the board didn't do enough investigation to justify the variance.

Another factor may be timing - you said the owner installed the flooring two years ago and I assume the ensuing racket is your complaint. Did you talk to the OWNER about your concerns at that time? If so, what was the response? Would you be willing to pay for your own test to show this is a problem? If this was a problem, I would think you would have done that and brought the findings to the board during your IDR.

You might also go after the setting of the IDR itself. Since the board would be the ones to grant permission or a variance, I think the hearing should have been run by an independent party with no relationship to you, the association and the board, and he or she would render a decision. And did the board member say anything else as to what they felt the floor was ok? Did you even ask them?

Are there other issues with this flooring that's causing problems in your unit besides noise (e.g an increase in vibrations is causing damage to your ceiling?) Have you taken photos (date and time stamped) of the damage? Have you taken recordings to show how loud your unit has become? All of that should have been brought to the IDR and if you didn't do that, that may be why you lost. If you want to succeed in court, you'll need more than simply saying 'that hardwood flooring is too noisy" or whatever you feel is affecting your unit. Since your beef is with the owner who installed this stuff, I'd go after him in the lawsuit.

Thanks for the replies!!!
The CC&Rs state
"5.12 Acoustical Limitations. All flooring shall meet or exceed a Field Impact Insulation Class ("FIlC") rating of not less than 55.
a. Hard-surfaced Flooring.
Upon installation of hard surfaced flooring, such as marble, granite, tile, or hardwood, Members shall perform and submit to the Association the results of an FIlC test performed by a testing agency approved by the Association."
So the BOD is giving a variance without even knowing the FIIC test results.
As far as material damage, i would guess my resale value ( i must declare the problem) will be substantially lower.
Thanks for the help, i'm not looking forward to legal costs. Especially if i'm on the loosing side.

-- Nationwide many lawsuits by downstairs neighbors against upstairs neighbors who have installed hard surface flooring have occurred. The downstairs neighbors tend to win.

-- One problem I see is the amount of time that has gone by since the hardwood flooring was installed and your complaint. Why did you wait so long? Or am I missing something?

-- If the acoustical test results have not been submitted to the condo (or the test has not been done), then this is just one violation of the CC&Rs that I see.

-- California law is pretty exacting about how to proceed with any complaint. After the IDR meeting, California Civil Code Sections 5910 and 5915 require, "A written resolution, signed by both parties, of a dispute pursuant to the procedure that is not in conflict with the law or the governing documents binds the association and is judicially enforceable. A written agreement, signed by both parties, reached pursuant to the procedure that is not in conflict with the law or the governing documents binds the parties and is judicially enforceable." See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5910 and https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5915#axzz2CgHrcBrn

-- I suggest you send a letter like the following to the condo Board:

--- Start Sample Letter ---
Dear Condo Board,

As you are aware, my upstairs neighbor at ____ [address] has a hard surface floor. The floor transmits persistent loud noises to my unit below. It is a legal nuisance that precludes the enjoyment of my home. To my knowledge and pursuant to the CC&Rs at section _____, the floor was never tested to meet FIIC 55. Consequently I believe the variance the Association has granted to my upstairs neighbor at _____ [address] is a violation of the Association's CC&Rs.

Pursuant to California Civil Code Sections 5910 and 5915, IDR was attempted on July 17, 2019. I attach an agreement for the Association to sign and then implement. Please sign this and return a copy to me by August 1.

Thank you,

John Smith
Unit ___
____ Condominium Association

Agreement, July 2019
Pursuant to California Civil Code Sections 5910 and 5915, IDR was attempted on July 17, 2019. The purpose of the IDR was to attempt to resolve member [SteveA7]'s complaint against the Association for failure to have the hard surface floor in unit _____ tested to see if it complies with FIIC 55. The Association hereby agrees to (1) have the floor in unit _____ tested by a properly licensed and qualified acoustical company; (2) provide a copy of the test results to member [SteveA7]. If the floor does not comply with FIIC 55, then the Association agrees to (3) require the owner of Unit ____ to install flooring that does comply with FIIC 55.

Signed,

_____ [SteveA7], date ________________
Unit ____

________ [President, Condo Board], date __________
Condominium Association

--- End Sample Letter ---

--If the Condo Association will not sign this proposed agreement, then the next step is for you to see alternative dispute resolution in the form of mediation or arbitration. I think mediation is preferable. The letter must comply with the parts given in the link for California Civil Code Section 5930. See
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5930
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5935
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5925.

-- An overview of the dispute resolution process, from complaint to IDR to ADR, see https://www.davis-stirling.com/HOME/ADR-Menu .

-- To start getting a handle on your legal rights in California on this subject, consider reading the following:
https://www.davis-stirling.com/HOME/Hardwood-Floor-Violation
https://www.davis-stirling.com/HOME/Acoustical-Guidelines
https://www.davis-stirling.com/HOME/Variance
https://www.davis-stirling.com/HOME/Exceptions-Variances-Waivers

-- Start looking for an attorney.

Hi AugustinD,
Thanks for a great reply!!
As to the timing, months before the floor was installed i made the BOD an new owners perfectly clear on the CC&Rs regarding hard surface flooring.
The BOD called for an IDR ( IDR #1) 2 1/2 years ago, almost to the day. I met with the BOD an new owners to discuss the issue.
That IDR stated that the new owners would follow the CC&Rs regarding flooring.
I signed it and the BOD signed it, but the new owners ( i found out a year later did not sign).
The BOD tried to use the IDR against me. They stated, that according to that IDR it was up to me to prove the floor did not meet the CC&Rs. I asked for a copy of the IDR, and they told me the new owners did not sign. It's been an amazing 2 years of full on BS from the BOD.

AugustinD

I have attached a pdf of the Section regarding flooring :
See below
Thanks!!

SteveA7, thank you for providing the relevant section. Is the hardwood flooring above any of your bedroom areas?

For what it's worth, at my former condo (not in California) this became contentious over a few years. Four upstairs, hard-surfaced units on different parts of the grounds were involved. The circumstances varied but all involved either problems with severe noise from hard surface flooring or alleged violations on installing same without the Association's approval. The noise in one instance was profound. It was consistent with what I have seen reported in case law where the upstairs owner lost. The Board and manager were initially terrible and incompetent. They played favorites in some cases and showed (also profound) ignorance of the law. Ultimately and after too long a delay, the issues arrived on the HOA attorney's desk. The HOA attorney read the board (and hopefully, manager) the riot act. The Board wisely let the HOA attorney handle it via stern letters to the upstairs unit owners (and appropriate follow-up with downstairs neighbors). As needed the tone of subsequent letters elevated to the language of that of the proverbial pit bull HOA attorney. All issues were resolved in favor of (1) the downstairs neighbors and (2) ultimately, the covenants.

My situation was similar, had bought my home when the upstairs unit had carpet and vinyl flooring, upstairs owner installs hardwood (which I only knew about because I saw the boxes, couldn't tell any difference in noise level), upstairs owner sells the unit to new owners (noise level suddenly off the charts).

I sold my unit long enough ago that I can't remember all of the disclosures I made.

I also served on the board for the last five years and we had to deal with another similar dispute in the community. That situation was complicated by the fact that the downstairs owner complained about noises that no one else could hear, and also accused the upstairs neighbor of all sorts of things that weren't true. We got the attorney involved, which we always do when it appears that Fair Housing laws could come into play.

To answer your question, yes, the board has a duty to enforce the CC&Rs. However, there are times when the issues involved are not black and white. I'd be curious why the previous variance was granted. If your upstairs neighbor happened to have mobility issues, for instance, then the variance could have been a "reasonable accommodation" for a disability, in which case the board was pretty well backed into a corner. (If this had been the case, I agree that the board may have dropped the ball by not getting test results from the new floor.)

In addition, a board must take care to avoid selective enforcement. With an issue like this flooring dispute, selective enforcement is pretty much guaranteed since the board will only know about the flooring if someone complains. (Depending on the number of units in your association, I'm willing to bet that some other owners also have flooring that violates your CC&Rs.) Once a board starts selectively enforcing, they are giving other owners a reason to go to court over it and maybe even giving judges a reason to find against the association.

So I'd hate to be in your board's shoes, because they seem to be between a rock and a hard place.

Just having an exchange here. I do not think I have seen a wheelchair situation raised in the case law. Maybe because the usual situations where these disputes arise involve condos where there is no elevator. Hence a person in a wheelchair is not going to buy an upstairs unit. I think urban condos of many stories and so elevators tend to have much more substantial structure between floors, helping mitigate the possibility of noise problems.

Even if this were a building with an elevator, and a person in a wheelchair put in hardwood flooring to accommodate his wheelchair and so his disability, I am not so sure that the person with the disability would completely win here. For example, he or he might have to install soundproofing material. I understand soundproofing material is not guaranteed to fix all the noise.

I say this because noise from upper level hard surface floors can be so profound that it can destroy completely the quality of life the downstairs unit has. The disabled rightly have unique rights, but from my reading, these do sometimes have to be weighed against the basic rights of others.



I do not agree with this concern about selective enforcement. It seems like you are almost saying a board who has a complaint of hard partying and loud noises from one unit, whereas the hard partying and loud noises are also occurring elsewhere on the grounds without complaint, translates to the board not having to respond to the first complaint. I do not agree.

At my former condo, many members were aware of multiple upper level units with unapproved hard surface floors but no noise complaints. This did not deter the HOA attorney from going after any situation where there was an unapproved, upper level hard surface floor and a complaint.

This made me laugh (from afar, where I do not have to suffer from noise in an upper level unit). I think your current board and manager are either flying solo sans HOA attorney, or they have an attorney who is incompetent on these matters.

I would go ahead and send the aforementioned short letter accompanied by the proposed agreement. I think you want it on record.

The courts expect HOAs and HOA members to try to resolve disagreements without going to court. California statutes are set up thusly. The courts are overwhelmed. Judges are underpaid. A judge who sees a HOA not following the statutorily required procedures for dispute resolution prior to going to court is going to skin the HOA's attorney alive.

Maybe do a records request for (a) the results of the FIIC test that covenant 5.12a. requires; and (b) approval by the HOA of the testing agency. even if the HOA does not respond, I think it is important to have this request on record. Send it certified mail, return receipt requested. Send your proposed IDR #2 agreement certified mail, return receipt requested as well. Make copies of everything. Documentation will be important.

I would home in on getting the required test; ensuring it was done by a legitimate company; and seeing what the test says. I hope you are mentally prepared for a possibly long conflict. For what it is worth, take it step by step. There are Californians here who have been through this process and can add their thoughts.

I hope these jerks (your board) do not drag their feet regarding doing what the law requires when it comes to covenant enforcement and dispute resolution, making you pay a few thousand dollars to an attorney for a demand letter. Some boards use their corporate might (with the members' dollars) to bully inappropriately. I think some boards have the attitude that members should be forced to pay a few thousand dollars of their own to an attorney, 'given all the trouble with which these volunteer-directors have to put up.'