The Sound and the Fury
Hard Surface Flooring Sound Transmission Issues
By Ellen R. Schuster, Esq.
This article first appeared in the Fall 2021 Issue of The Communicator here.
Complaints about noise from an upstairs neighbor’s hard surface flooring - and the expectations that the association will handle it – are on the rise. This increase is due to aging buildings, hard surface flooring trends, and more people at home during the day hearing noises they wouldn’t have heard while otherwise at work.
Boards have a duty to investigate reports of violations of the governing documents. Hard surface flooring noise disputes may implicate such violations in several ways, including restrictions on the installation of hard surface flooring without prior association approval, installations that increase noise transmission from what existed prior to the installation, and nuisances. Without investigation, and potentially taking enforcement steps, associations may be at an increased risk of a lawsuit for failure to enforce the governing documents and breach of fiduciary duty. Let’s untangle this issue to set the association on a path to avoid unnecessary litigation, and possibly resolve the noise issues along the way.
INVESTIGATION OF A COMPLAINT
The board’s investigation should be aimed at determining whether a violation of the governing documents has occurred, and its investigation should be well documented. If the board determines that a violation has occurred or is ongoing, it should consider enforcement steps. While directors have a duty to investigate and generally to act in the face of a violation, the extent of that action depends on many factors.
The way to conduct a reasonable investigation may depend on the association’s architectural provisions regarding hard surface flooring and nuisance provisions, which can vary widely. Some CC&Rs prohibit hard surface flooring altogether in upper units, others prohibit hard surface flooring without architectural approval, and still others prohibit hard surface flooring if its installation increases noise transmission or does not meet specific noise transmission standards (i.e., an "Impact Insulation Class" or "IIC" rating), but may not otherwise require approval prior to installation. Some CC&Rs contain specific nuisance provisions regarding noise transmission between units, while others may be drafted more broadly. Legal counsel can advise on these provisions and options for the board to conduct its investigation. Here are some strategies for managers and boards to consider.
1. INSPECT THE DOWNSTAIRS AND UPSTAIRS UNITS.
Simply because an owner received architectural approval to install hard surface flooring does not necessarily insulate them from consequences arising from the installation. The location, method of installation, and type of flooring used may not be consistent with the application and approval. Additionally, increased, or certain types of noise transmission may be prohibited under the CC&Rs.
A manager and one or more board members should visit the unit below and the one above with the hard surface flooring. While the way each person experiences sound is subjective, an inspection may at least help determine the placement and type of hard surface flooring and whether any of the sound transmission could be attributed to typical daily living activities. If either resident refuses to allow an inspection to be conducted in their unit, legal counsel can advise on options. Most well written CC&Rs will give the board the authority to access a unit to determine if violations are occurring, although this authority is best used as leverage to gain access, rather than a justification for breaking down a door. One key purpose of the director inspection is to assure the member that their concerns are being looked into and not ignored (even if ultimately the board concludes there is no violation or, if there is, that further action is unwarranted).
Another option is to conduct an inspection before and after hard surface flooring is installed if the association receives an architectural application or some other advanced notice. A comparison could be made between the level of noise transferred before and after the hard surface flooring is installed.
Since these kinds of inspections and comparisons are subjective, one more consideration is using a sound measuring device. Handheld, digital decibel meters are cost effective (some are around $20) and the board or manager could check with an expert to determine whether a specific device would be useful under the circumstances. Ask legal counsel about the best way for the association to gather and use information from this kind of meter.
2. HIRE A SOUND TRANSMISSION EXPERT.
While a simple sound measuring device may be useful, noise levels and the construction or installation of flooring materials are highly technical. A sound transmission expert like an acoustic engineer can provide an opinion about whether a certain type of flooring can meet a specific noise transmission standard (such as an IIC rating) based on the construction of the building, conduct an inspection of the units, or perform sophisticated sound testing. Hiring an expert can be particularly prudent when the disputing parties are, or appear to be, litigious. Legal counsel can advise on how to best utilize an expert’s services.
3. HOLD A MEET AND CONFER MEETING (ALSO KNOWN AS INTERNAL DISPUTE RESOLUTION).
While the board may have already received a lot of information from the complaining resident, they may not have spoken with the resident directly. Also, the board may not have discussed the matter with the owner of the unit with the hard surface flooring. Holding a separate "Meet and Confer" (a meeting with the affected parties and one or more directors, the purpose of which is to identify potential solutions) with each party allows the board to gather critical information and gives each person a chance to be heard. Ask legal counsel whether it would be prudent under the circumstances for counsel to be present at these meetings. These meetings will allow the parties to state their views and resolutions may result, such as having the upper unit owner agree to add area rugs and padding to the portions of the floor where people walk. This approach – and potential solution of rugs and padding – may be most useful after the board determines whether a violation has occurred. If there is a violation, the board may consider requiring rugs and padding to be added as a sound mitigation measure, as well as an inspection to confirm the rugs and padding were added. However, the board should make some additional considerations before officially requiring rugs and padding as a sound mitigation measure. If there is no violation, the board could present rugs and padding as a suggestion, rather than a requirement. In some cases, it might make sense for the board to consider allocating association funds toward some portion of the resolution between the parties.
PRACTICAL CONSIDERATIONS
If the board determines that a violation has occurred, what’s next? Typical disciplinary actions taken after notice and hearing, such as imposing fines or reimbursement assessments, suspending access to common area amenities, sending cease and desist letters, or holding internal dispute resolution, may not successfully resolve the issue. While taking legal action is an option, ordinary enforcement steps may be the extent of what the board finds to be appropriate under the circumstances. In determining appropriate next steps, the board should regularly assess the use of association financial resources to address what may be an issue only affecting a very small number of residents within the community. Here are some practical considerations to evaluate.
1. DEFER FURTHER ACTION
If the board’s investigation results in a determination that the issue is isolated to these residents, is relatively minor, and is best suited to resolution between the parties themselves, it may opt to take a hands-off approach. In many cases, the parties may be better positioned than the association to discuss or take additional steps, like sound proofing, sound testing, or litigation. The association should notify the parties in writing of the investigative steps taken, the board’s determination, and the reasons for the decision. Documentation as to why the board chose not to pursue a matter further will be essential and should include reference to such things as cost, chances of success, impact on the community, disclosures, and other relevant factors.
The Business Judgement Rule protects boards who make decisions in good faith, within the scope of their authority, and in the best interests of the association. In Beehan v. Lido Isle Community Assn, (1977) 70 Cal.App.3d 858, the court upheld the board’s decision not to take enforcement action against owners potentially violating the architectural rules of the association. The board’s determination was protected because they conducted a reasonable investigation and made a reasonable determination in good faith, within the scope of their authority, and with a view to the best interests of the association, including its financial position.
Since there may be risk of litigation if this approach is used, check with legal counsel before taking this step.
2. NOTICE OF NON-COMPLIANCE
If the hard surface flooring is determined to be in violation of the governing documents, a notice of non-compliance letter may be sent to the owner with the hard surface flooring. A copy will be added to the unit file, which can be provided to prospective buyers as part of the association’s disclosures (pursuant to Civil Code sections 4525(a)(5) and 4530(a)(1)), but only after a formal hearing is held pursuant to Civil Code section 5855. While it may be difficult (but not necessarily impossible, as each case is different) to successfully enforce architectural provisions against an owner who did not install the hard surface flooring, such a letter (i.e., the post-hearing Notice of Decision) can put prospective buyers on notice of a non-compliance issue associated with the unit’s hard surface flooring, which may provide the association with enforcement options against a new owner under the sound transmission or nuisance provisions of the governing documents, if necessary.
3. REASONABLE ACCOMMODATIONS
If a unit owner requests hard surface flooring due to a disability or health condition, such as allergies, they are effectively requesting an accommodation. Associations are required to provide reasonable accommodations in compliance with fair housing and other laws, as well as case law. What amounts to a reasonable accommodation in any given case will depend on the specific facts.
There are two cases of note:
In Savoy v. Zhang (2012), the court found that an association had discriminated against a unit owner who requested hard surface flooring as a reasonable accommodation by retroactively denying her request, fining her, and effectively denying her access to her own unit as well as the common area amenities, despite the fact that she had documented a health condition necessitating no carpets, she sought architectural approval, other units had hard surface flooring, and the downstairs neighbor did not experience any noise issues. While this is an unpublished case with a set of somewhat extreme facts, it should serve as a cautionary tale to associations who receive hard surface flooring requests as disability accommodations.
Ryland Mews Homeowners Assn v. Munoz, (2015) 234 Cal. App. 4th 705 also involved a resident with breathing issues. There, the upper unit owner’s wife had allergies which necessitated hard surface flooring, rather than carpeting. The court required the owner to find a way to modify the flooring (which had resulted in significant noise transmission to the lower unit) in such a way as to meet his wife’s needs and comply with the CC&Rs, and to use throw rugs until a permanent solution could be found.
In short, managers and boards should consult with legal counsel when there is a noise dispute between neighbors and one has claimed a disability or made a request for accommodation since there are several complicated - and potentially competing - laws that must be considered.
4. FLOORING POLICY
If the association does not yet have a hard surface flooring policy in place, the board may wish to have legal counsel create one for consideration. Depending on the provisions of the CC&Rs, such a policy may impose specific requirements on owners seeking to install hard surface flooring (i.e., hiring a sound expert to certify that the installation will meet certain requirements), put owners with hard surface flooring on notice of the potential consequences of noise issues arising from the flooring (i.e., paying for a sound test obtaining baseline sound readings at owner cost), and give the board enhanced enforcement options. In some cases, creation of a policy will not be enough and amendments to the CC&Rs may be needed.
5. NOTIFY ASSOCIATION INSURERS
Consult with legal counsel if either party threatens the association with a lawsuit or makes specific demands of the association. It may be prudent to put the association’s insurance carriers on notice of a claim or potential claim.
Where there’s sound, there may be fury. Noise complaints due to hard surface flooring may be on the rise, but with the right tools, boards can successfully navigate and address the complaints while protecting the association’s interests. Here’s to quiet enjoyment for all.
Ellen R. Schuster, Esq. is an attorney at Berding & Weil, LLP, where she practices corporate and business law, focusing on advising community associations on their operations and transactions, including real property issues and statutory compliance.