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Upstairs, Downstairs:

 Not all noise complaints relate to floor coverings. Some buildings lack sufficient soundproofing between adjacent units, allowing greater than normal sound transmission. Floor structures can lack sufficient rigidity, causing them to “creak” or “groan” when walked on. But the vast majority of such claims come from a downstairs unit owner reporting elevated noise levels after an upgrade to hard-surface floors. Floor coverings are part of a unit owner’s separate interest. They are not common area and the association will not usually have direct responsibility for their performance as it would with a defective structural element, for example. However, the governing documents may include floor covering provisions as part of the architectural guidelines that the association is charged to enforce. Also, the association can be responsible under the governing documents for abating a “nuisance” regardless of whether the nuisance involves a separate or common interest.

CC&R provisions relating to noise transmission

Here are three typical provisions found in community association governing documents. The first one prohibits hard-surface floors unless approved by the Architectural Control Committee and any change must provide sound insulation equivalent to the original carpet and padding.

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.

The second example prohibits any change in floor covering that would increase noise:

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.

This last example sets objective noise transmission standards that must be met by any floor covering change:

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 Field Impact Insulation Class (FIlC) 50 or higher. Airborne sound insulation rating thereof must be Noise Isolation Class (NIC) 52 or higher.

If a flooring change is subject to architectural control, nuisance regulations, outright prohibitions, or objective standards, the association will usually be brought into the dispute.

Responding to a noise complaint

A complaint might be presented by the lower unit owner, who, armed with the CC&Rs, reports to the board that he or she is experiencing unreasonably loud sounds coming from the upper unit. Further, the owner reports that they are aware that the upper unit owner installed hard-surface flooring and demands that the association intervene and require the owner to remove the hard-surface covering and restore the carpet.

“If a flooring change is subject to architectural control…or objective standards, the association will usually be brought into the dispute.”

At some point, the board will ask the upper unit owner to verify or deny the complaining owner’s version of events. A manager might be dispatched to investigate the claim by requesting an inspection. In many instances, the back and forth between the association and the upper unit owner can go on for months all to the frustration of the downstairs unit owner. Because noise and noise tolerance among individuals varies so much, the board usually has no idea of the severity of the problem. Like eyes and beauty, noise lies within the “ears” of the beholder.

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 failing to enforce the CC&Rs. Unfortunately, if that happens, the association may discover that its liability insurance excludes claims arising from sound transmission. The association then would find itself embroiled in litigation that it must fund.

Strategies to avoid litigation

There are strategies the association can take to avoid the possibility of being on the receiving end of a lawsuit. In our view, quick, assertive action by the board can minimize the potential for litigation or at least strengthen the association’s case if it does get sued.

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 may be necessary to determine the proper course of action. If it is clearly the association’s obligation to enforce noise issues, either because they are a nuisance, require architectural control approval, or because they must meet an objective standard, the board of directors will be required to take action.

Once involved, the board must weigh its commitment of association resources against the dictates of the governing documents. If it determines 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 provision like one of those above, action may be required. 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. It could also include issuing a Notice of Noncompliance to the upper unit owner and including that notice in the unit file. If the board has determined 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.

If the governing documents couch noise requirements in such terms as “equivalent insulation” or set objective standards for noise, a sound test by an acoustic engineer may be necessary. However, even 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. Further, some noise “standards” that are available in the housing industry are usually relatively easy to meet, meaning that compliance with them does not necessarily mean that the floors are “soundproof” or that the noise from above will not continue to be annoying.

The association, in evaluating whether or not a breach of the governing documents has occurred, should interpret them narrowly where a subjective evaluation is involved. To do otherwise exposes the board to the risk of substituting its own judgment in place of the governing documents, unnecessarily bringing the association into a dispute that it has the right to avoid, and inviting litigation.

Setting conditions of approval of a flooring change

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 example, it could require that the upstairs owner provide evidence of “insulation equivalency” by means of a sound test or laboratory data. Where the “standard” has been met, but the noise from above could still be 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 related to the flooring change. This will ensure that if the association does get sued it can look to the upper unit owner to fund its defense.

Noise issues are subjective and no two owners will perceive them alike. The association’s obligation is to enforce the CC&Rs as they are written, but it must also respect the rights of both the upstairs and downstairs owners to the greatest extent possible. But once the association board of directors has given both parties notice and an opportunity to be heard on the issue, it should determine its course of action and stick with it. Anything else will simply create more opportunities for debate.