HOAs of multi-level condominiums or other developments are probably familiar with nuisances caused by noisy neighbors, with a majority of complaints coming from unapproved flooring. Associations have a legal responsibility to address and resolve theses noise nuisances or else face expensive litigation and fees.
Noise disputes among homeowners can be one of the most troublesome problems community associations and their managers face. Everyone is entitled to the quiet enjoyment of his or her residence, giving homeowners a legitimate right to complain about a loud neighbor whose conduct constitutes a nuisance. Unfortunately, noise complaints are expensive to resolve and can create bad feelings in the community. But homeowners association boards who act quickly and assertively can defuse the dispute, or at least keep the association out of court.
Hard-Surfaced Floors Lead to Noise Nuisances
Noise issues often arise when a downstairs owner complains about noise coming from the unit above. The most frequent source of loud noises involves floor coverings, or the lack of them. The typical dispute has a common set of facts: an upstairs unit owner decides to remodel. They remove carpeting and install hardwood or tile in its place. This upgrade occurs without application or notice to the Architectural Control Committee. The downstairs unit owner then issues a complaint to the homeowners association about unreasonable noises that are a direct result of these new floors (usual complaints include noise from walking, voices, music, or television sounds).
Floor coverings are part of a unit owner’s separate interest. They are not common area, and an HOA will not usually have direct responsibility for their performance (as it would with a defective structural element, for example).
However, an HOA is responsible for enforcing the governing documents which…
- Should require all units comply with local or state building codes and
- May include floor covering provisions as part of the architectural guidelines
The HOA can also be responsible under the governing documents for abating a nuisance regardless of whether the nuisance involves a separate or common interest.
Avoiding Noise Disputes with HOA Governing Documents
An HOA’s governing documents should have provisions to help avoid conflict between neighbors over noise-related complaints. These include preemptive provisions that require approval by the Architectural Control Committee for flooring changes as well as ensure the HOA buildings comply with state law. Well-formed governing documents not only help dissolve conflicts (with objective rules that limit disruptive behavior), but can help guide an association if the dispute does rise to litigation.
Complying with the California Building Code
Under California Building Code Section 1207.3, all floor coverings between units must meet an Impact Insulation Class (IIC) of 45 if “field-tested.” Field testing requires acoustical consulting firms to conduct sound tests on a building according to the Building Code’s specific procedures. We’ll discuss this later in the article.
The governing documents should include this IIC rating to create an objective standard that homeowners must abide by. They should also mention that the HOA has the right to inspect units to confirm compliance with the IIC rating, after reasonable notice is given. This will avoid difficult situations that can arise if the upstairs unit owner refuses to allow a sound test in his or her unit.
Amending the Governing Documents
To avoid upstairs noise nuisances, an HOA may need to amend its governing documents to require approval for flooring changes
If the association’s CC&Rs give the board discretion to allow flooring modifications from carpet to hard-surface flooring, the board may wish to impose conditions on that approval. For instance, the board of directors should consider a provision in the CC&Rs that requires the upstairs owner to provide evidence of compliance with an approved IIC rating through a sound test. Where the standard has been met, but the noise from above is still objectionable, the board may want to reserve the right to require the upper unit owner to use area rugs or runners to mitigate the sound transmission.
In any approval of flooring changes, the board should also require that the owner of the unit requesting the flooring change defend and indemnify the board against any claims made by third parties (such as a downstairs owner) related to the flooring change. In other words, the upstairs homeowner will assume legal responsibility for the flooring change so that the association can look to the upper unit owner to fund its defense if it’s charged with litigation.
Below we have listed three examples of common CC&R provisions used to regulate noise between units and avoid disputes between owners.
CC&R Provisions that Regulate Noise Transmission
Here are three typical provisions found in community association CC&Rs.
Floor Coverings: No change in the floor covering materials as originally installed in the Units by Declarant shall be permitted except with the consent of the Architectural Control Committee. To reduce sound transmission between Units, all Units shall have all floor areas except entries, kitchens and bathrooms covered with carpet or other material which provides equivalent insulation against sound transmission. Flooring in bathrooms shall be acoustical cushioned linoleum as originally installed by Declarant, or material with the same or better acoustical quality and rating.
Sound Transmission: No Unit shall be altered in any manner that would increase sound transmission to any adjoining or other Unit, including, but not limited to, the replacement or modification of any flooring or floor covering or the penetration of any wall, floor or ceiling that increases sound transmissions to any other Unit.
Floors: All changes to floors separating Units (tile, hardwood, stone, carpet, etc.) must provide code-compliant sound control properties for airborne and impact sound insulation. In addition, the floor/ceiling assemblies must satisfy the higher sound control requirements established for the Project as set forth herein. The impact sound insulation rating of the floor ceiling assemblies after installation must be Impact Insulation Class (IlC) 50 or higher. Airborne sound insulation rating thereof must be Noise Isolation Class (NIC) 52 or higher.
Investigating a Noise Complaint
Once a downstairs unit owner issues a noise complaint from suspected flooring violations, the board will have to ask the upper unit owner to verify or deny this claim.
The board of directors or HOA manager should request to inspect the upstairs unit after supplying sufficient notice. . According to the Business Code standard, the only objective way to verify that floor coverings comply with the law (and the HOA’s CC&R provisions) is to conduct sound tests in the upstairs unit.
A tapping mechanism measuring IICThe Building Code has specific procedures for conducting these tests to determine the Impact Insulation Class (IIC) of the offending floors, including the use of a tapping-type mechanism with a meter that registers the IIC in any given area of the unit. If the offending floors have an IIC that is below 45 (or the HOAs determined IIC rating if it is different), the upstairs unit clearly violates the governing documents. If the unit owner refuses to correct the violation by removing the offending floors and installing carpeting over a sufficiently-thick pad, the HOA will have to pursue legal action to enforce compliance.
However, if a sound test concludes that the sound transmission from the upper to the lower unit is within standards, that conclusion may do little to comfort the complaining lower unit owner. The HOA may then resort to subjective evaluation of the noise problem but should remain within the guidelines of governing document provisions. Otherwise, the board exposes itself to the risk of substituting its own judgment in place of the governing documents, bringing the association into a dispute that it can avoid, and inviting litigation.
These tests require special equipment and should be conducted by an acoustical engineer.
Inaction Could Lead to Litigation
The back and forth between the HOA and the upper unit owner can go on for months, causing significant frustration for the downstairs unit owner.
The danger for the association in these situations is underestimating the severity of the problem and giving the appearance that the association is not willing to enforce relevant provisions of the CC&Rs—assuming they exist. In extreme cases, the downstairs owner could hire an attorney and file a lawsuit against the association for this inaction.
Even if legal action is only brought between the unit owners, the association would probably be added as party to the suit and the issue of whether the association has met its obligation to enforce the governing documents will be central to the case.
HOAs Face Hefty Fees for Failure to Enforce
Under California law, a homeowner can sue an HOA for failing to enforce its rules. The owner can claim monetary damages and mandatory injunction that compels the association to take necessary steps to enforce compliance. See Cohen v. Kite in which a homeowner was able to maintain an action for damages against an association for breach of the CC&Rs, breach of fiduciary duty, negligence and willful misconduct when the association allegedly failed to enforce compliance with its architectural standards.
In another case that went to trial in the East Bay in the early 1990s, an association’s board of directors was forced to pay over $100,000 in damages for failing to enforce a provision in its CC&Rs regarding hardwood floors.
Since governing documents typically include a provision awarding attorney’s fees and costs to the prevailing party in a legal action, the association would risk paying for even more expenses if it ignores noise complaints from unit owners.
If the association has a clear duty to act under the governing documents, and it fails to respond properly to a downstairs neighbor’s complaints about a flooring violation, the board’s liability insurance carrier may deny coverage for this type of claim. Under the business judgment rule, the board’s inaction must be reasonable under the circumstances. Therefore, if the proper steps are not taken, the association and possibly individual board members risk paying for these claims out of their own funds.
Alternative Dispute Resolution and the California Civil Code
The threat of legal action is a real concern, despite the requirement that the parties first attempt Alternate Dispute Resolution (ADR) under Civil Code Section 5925-5965 for claims involving injunctive relief (a court order requiring a person to either do or not do a specific action). The Civil Code requirement only applies to cases when monetary claims are $5,000 or less and they do not require preliminary or temporary injunctive relief. However, the combined cost for a sound test, related investigations, pre-litigation property management fees and attorney’s fees may exceed $5,000, which eliminates the ADR requirement Also, the constant noise generated from the upstairs flooring will likely be grounds for the downstairs unit owner to seek a preliminary injunction or temporary restraining order (also eliminating the ADR requirement).
Strategies to Avoid Litigation
There are strategies the association can take to avoid the possibility of a lawsuit. In our view, quick, assertive action by the board can minimize the potential for litigation or at least strengthen the HOA’s case.
Determine Board’s Duty to Act
If the CC&Rs exempt the association from enforcing “neighbor on neighbor” issues like noise complaints, the board should immediately advise the owners of that fact and leave the enforcement to the complaining owner. Unfortunately, the board’s duty in this regard may not always be clear. A review of the situation by the association’s counsel (such as managers or lawyers) may be necessary to determine the proper course of action.
If it is clearly the association’s obligation to address noise complaints, either because they are a nuisance, violate governing document provisions, the board of directors will be required to take action.
Stick to the Results of the Complaint Investigation
When the board investigated the noise complaint, it should have determined the validity of the dispute.
If it determined that the noise issue from every objective point of view is really not that severe, the board should explain that while it is sympathetic to the sound issues that the lower unit owner is experiencing, the use of association resources to address what is largely a subjective problem does not make sense. For example, if the dispute does not involve a change in floor covering, but the upstairs neighbor just walks with a heavy foot, none of the CC&R provisions above would necessarily require board action. In that case the lower unit owner should be reminded that if the association were to intervene it would be using member assessments to cure a purely behavioral problem between two owners. Of course, the risk in taking a hands-off position is that the association may find itself embroiled in litigation involuntarily.
But if the noise dispute falls squarely within a governing document provision (such as an owner installing floors without the Architectural Control’s approval) the HOA has a duty to act. In these situations, the association should tell the lower unit owner that it is reviewing the available enforcement remedies. Depending upon the provisions of the governing documents, this could include calling the upper unit owner into a hearing to discuss the flooring dispute and issuing fines to the upper unit owner if the board verifies that the floors were installed without approval and in violation of the governing documents. The board may also issue a Notice of Noncompliance to the upper unit owner and include that notice in the unit file. If the board determines to limit its enforcement of this dispute, it may want to make clear to the lower unit owner that its enforcement activities, while aggressive to a point, will not, for example, involve the filing of a lawsuit. In other situations, especially where the change in flooring material is a specific violation of the governing documents, the board may need to take a harder stance.
Follow Through With Procedures
Homeowners associations must always be careful to follow their own procedures in addressing a violation of its governing documents. In Ironwood Owners Association v. Soloman, an association sought injunctive relief against a unit owner for failure to comply with architectural standards. Although the association obtained this relief at the trial level, the case was reversed on appeal because the association did not follow the procedures in its CC&Rs for approving the unit owners’ plans to modify their unit.
The Bottom Line of Noise Complaints
An association cannot simply ignore noise complaints regarding flooring. The HOA must enforce the CC&Rs as they are written, which may require amendments to the governing documents that include procedures for flooring and noise violations. The HOA should establish a firm policy for addressing these violations that allows both parties notice and opportunity to be heard on the issue. But once the HOA has ensured that both parties’ rights are respected, it should determine its course of action and stick with it. Anything else will simply create more opportunities for debate and increase the chance of litigation.
Adapted from articles by Marc D. Bender and Paul Windust. Bender is an attorney that specializes in construction defects and compliance issues, while Windust is a member of the ECHO Legal Resource Panel and an attorney with Berding | Weil.
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