Noisy Upper Level Floor & Covenant on Same

Consider the following covenant at a fictional condominium:

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"37. Flooring Sound Limits, Upper Level Units. For all upper level units, all flooring shall meet or exceed a [professional floor sound rating] of not less than 55.

(a) Tile, wood, laminate and other hard surface flooring
Upon installation of hard-surfaced flooring, owners shall perform and submit to the board the results of a professional floor sound rating test performed by a testing agency approved by the board. If the floors fail to meet or exceed a rating of 55, the Member shall bring the flooring into compliance."
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An upper level unit owner (Zachary) installs a wood floor in his unit. Testing yields a rating of 60. Technically the floor violates the covenant. Worse, the lower level unit owner, Joan, reports that, as soon as the floor was installed, the noise in her lower level unit became intolerable and a nuisance. The dispute finds its way to court.

Expert witnesses testify that the required sound level rating for upper level units cannot be achieved. The experts testify this is due to how the condos were constructed.

Zachary's attorney says this makes the covenant "unfair and unreasonable." Zachary's attorney points out that whoever wrote the covenant misled buyers into thinking that it was entirely possible to install a wood floor and meet or exceed the required sound rating. Zachary's attorney asks the court to (1) rule that the covenant is neither fair nor reasonable; and (2) order experts to identify a reasonable sound limit rating.

Joan's attorney responds: "Every owner bought into this condo with eyes wide open. Here's the proof that Zachary received a copy of all covenants before buying his condominium. [Hands judge the proof.] Zachary could have investigated further the structure of the condominium. Zachary was never guaranteed the chance to have a hard surface floor. For him to argue that the floor sound rating is not reasonable because of how all the units were constructed is something he should have considered before he bought his condominium. This covenant is fair and reasonable. It should not be thrown out. The professional floor sound rating of 55 is what it is. It should not be touched."

Suppose you are the judge. First, is the covenant fair and reasonable? Second, should you set a new (and easier to attain, helping Zachary's position) sound rating limit, based on subsequent expert testimony?

Did the expert conduct tests of all the other units? What construction engineering evaluation tools did the expert use to determine the impossibility? Did the expert gave access to construction photographs taken during the actual construction?

The expert is the red herring - without this apparently baseless binary component, it’s easy.

1. Yes
2. No

George, no tests of other units were done. The evaluation only considered the documented fact that the condos are wood frame. No photos of the construction are available. But all parties agree the construction is wood frame. Your thoughts are welcome.

You're welcome. I ended up selling my first floor condo because of excessive noise from upstairs, and now live in a townhouse (neighbor on one side only) since I'm one of those who doesn't want to hear anything overhead. Noise travels up and down more easily than it does from side to side, even though our buildings were designed to minimize sound transmission between floors. In my experience, though, the noise is much more a function of the upstairs neighbor's behavior than the flooring he has, and unfortunately the downstairs person is at the mercy of that person.

For someone who is considering buying a condo in a multi-floor building, I say "know yourself". If you can't stand overhead noise, you should be on the top floor. If your heart is set on hardwood flooring, then you need to be on the first floor. And if you're sensitive to any noises or smells, you should maybe re-think the condo idea altogether.

I think Zachary's attorney needs to add the argument that the upper unit owner can get the sound down to the required limit and the expert is wrong. Is the ceiling of the first floor unit soundproofed with roxul and resilient channels? I would say it is the upper units responsibility to get the noise to 55 regardless what they have to do. Then the problem would be does the first floor have to allow the upper floor access to the first floor to sound proof and what happens if they don't allow access. I'm on the first floor and planning to soundproof my ceiling because of upper unit hardwood floors. Our docs do not restrict flooring but does give the Board the right to make rules about the flooring but the Board has not done so yet.