QUESTION: The owner of an upper unit installed a wood floor less than a year ago that disturbed the tenants below so much that they moved out because they could not stand the noise. The owner is refusing to change the flooring or put down carpeting because of allergy concerns. Can we amend our CC&Rs so that no wooden floors can be installed on the second floor? Can we make it retroactive?
ANSWER: You can amend your CC&Rs to prohibit hardwood flooring. Making it retroactive will not solve your problem. If someone has severe allergies, you must reasonably accommodate their request for a hardwood floor. All the person needs is a letter from a health care provider saying they need the flooring. Allowing it to be installed does not mean the person can destroy the quiet enjoyment of the resident below.
In a 2015 case, Ruben Munoz installed hardwood floors that transmitted intolerable noise to the owner below. Munoz refused to mitigate the noise claiming his wife suffered from severe allergies. The association sued Munoz. The court ordered him to install rugs over 80% of his floors. Munoz appealed and lost. (See Ryland Mews HOA v. Munoz.)
Your allergic owner can keep her hardwood floors provided she gets a letter from a healthcare provider that the floors are necessary and she eliminates the intolerable noise into the unit below. That may mean installing hypo-allergenic rugs throughout her unit. If that doesn’t work, she may need to hire a contractor to remove her hardwood floors and reinstall them with proper soundproofing material.
RECOMMENDATION: You should have legal counsel write a letter to your allergic owner that failure to eliminate the noise will result in a lawsuit against her. If your board is reluctant to incur legal fees, directors should know that failure to take appropriate action could result in a lawsuit against the association by the owner below for failure to enforce the CC&Rs.
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