California Condo & HOA Law: NEIGHBOR TO NEIGHBOR Archives

July 27, 2010

What Can You Do When the HOA Board Does Not Enforce the Rules?

This is a hot topic. The question sent to me is:

""What can I do about a board that does not enforce the rules? They won’t do anything about people disobeying the rules because they are afraid of retaliation. As a 20 year homeowner, what can I do and where do I start?"

There are many ways to attack this problem. But first, understand that board members are volunteers, they have their hands full these days just trying to keep their HOA or Condo Association "afloat", and they can use help.

So, first, get educated about rules. There are 5 "Enforcement" Primers available on my website for $25 each that will tell you everything you ever wanted to know about rules and enforcing them. And forms to boot! These Primers are intended to assist boards in setting rules and policies that are reasonable, and they being able to enforce them!

Second, run for the board! If you want to help, get your hands in the pot. If you want to know what the board responsibilities are there are two Primers on the website relating to Board Basics (responsibilities) - I (basic) and II (intermediate). There is also an Operations Primer and an Ops forms Primer to assist with operations.

Chronic complainers (about rules enforcement) can become part of the problem. Become part of the solution! Get involved in the leadership in your association. If you are not willing to do that, then at least keep your corner "clean".

Posted by Beth Grimm at 11:42 AM

February 1, 2010

COOKING SMELLS, IS THERE RELIEF IN AN HOA OR CONDO?

I get all sorts of emails about problems in HOAs and Condos. Here is a difficult one:

"My problem is two-fold: 1. Hours upon hours of curry cooking by my upstairs neighbors. 2. When the downstairs unit turns on their kitchen exhaust fan the smell is concentrated inside the walls around the kitchen exhaust vent piping, which then enters my unit through my kitchen, laundry room and hall bathroom. (all these rooms share common walls around the ducting)

Is there any law that would help?"

This person believed there was a crack in the venting that is causing the smell to escape the pipes between the walls. The smell is very pervasive. The writer says: "My eyes burn, and the smell is linguring on my belongings, etc. To me this is air pollution and a nuisence. I can't open up the windows, because the outside air around my end unit is thick with the smell of curry. "

The writer believes that the heavy curry and grease combination is a fire hazard. The writer says that it is very difficult to get the smell out of the walls and rugs, or do anything about the cooking itself. (I wonder if they have tried to talk to the neighbor.)

The writer believes there is a need for a company that specializes in running a probe that detects leaks up through downstairs units kitchen vent piping and says that it would would probably mean going though the walls the unit to repair. A difficult problem and not that uncommon. It is similar to a smoking issue except that there are not studies that find second hand curry to be hazardous to the health. Some of the remedies would be similar, and there are websites that suggest how to block smells between units when there is a problem with cigarette smoke. You might search for smoking smell solutions or similar terms. The same measures might work for curry smells. There are companies that specialize in this sort of thing, right down to insulating outlets.

It is similar to noise issues but the remedies are different. Dealing with the issue with the neighbors is similar though, and communications might lead to some relief, if the people cooking with the curry are willing to talk. There are various ways to approach the neighbors and deal with the issues discussed in a Primer available on my website - the Enforcement Advanced E-4 Primer that deals with neighbor to neighbor issues. (See the webstore - $25.)

And it sounds like in this case that the association might get involved. The writer says that the association says if it finds nothing wrong with the venting system, it will charge the owner the costs of any investigation. That may not sound especially fair; however, the HOA may have taken that position feeling that the owner's claim that they believe there is a problem with the common area venting system is just an attempt to "pass the buck" to someone else to deal with this difficult situation.

If the owner cannot get resolution through taking reasonable measures to block the invading smells, he or she might have some luck pursuing a nuisance claim in small claims court. One can file for money damages for a nuisance. No guarantees though. The writer would have to convince the judge hearing the case that the curry use is overboard and a real nuisance. The most likely success would come if the owner can prove that the excessive cooking with curry is a danger (quoting studies or believable articles that the writer says are available), or is adversely affecting his or her health (such as the burning sensation in the eyes, note from the doctor, etc.). If the writer had sensitiviities or allergies, there might be some basis to file a claim based on adverse health issues. I would not start there, but one might end up there if the affect is really adverse to the health.

It sounds like there might be a problem with the venting system if it does not absorb the cooking smell to some degree. Maybe this is something the curry cookers might look into, if they were willing, i.e., a better stove exhaust system.

It's a tough one. I do not have an easy answer, but in the Primer I do discuss how to deal with difficult neighbor to neighbor issues. And how to determine when the Association should (or should not) get involved.

Anyone out there have any solutions or suggestions? Send me an email.

Posted by Beth Grimm at 9:57 PM

January 16, 2010

Who Fixes What in a Condo or HOA?

When anyone in a shared amenity situation has a question about who maintains what, there are a number of things to consider. Naturally, a simple and inexpensive problem may be easier to solve than a complicated one. If there is not a big investment, the sides (board and owner or neighbor-to-neighbor) are less inclined to fight about it. One or the other may just make the repair and let it go. However, that can lead to issues in the future. Once a board establishes a pattern of fixing something it is not responsible for, or requires some owners to fix something they are not responsible for, and then finds out that it was an improper assessment of responsibility, it can open up a can of worms. Getting off on the wrong foot with regard to maintenance responsibility can spiral out of control.

If you want to see an example of how things can spiral out of control, sign up for the E-news on my website. A full E-newsletter on the subject is coming out next Wednesday and it will be posted on the website a few days after that in the E-news archives.

The things to consider in sorting out responsibility in any maintenance dispute or question include:

[Ownership of the item] It is important to know who owns the property that is damaged. The maintenance and repair obligation does not always fall on the owner, but establishing this basic fact will surely come into play if there is no documented responsibility in the HOA or condo association documents.

[Governing Documents] What, if anything, do the governing documents for the HOA or Condo Association (which include Articles of Incorporation, Bylaws, and CC&Rs; or Rules and Regulations, if these items exist) say?

[California - or other state's - Law on the Subject] What does the law (including statutes and cases) say?

[Location of Damage] Is the damage or work that is needed in a common area or in an exclusive use common area (area accessible or used by only one or a few, as opposed to all owners), or in an individual’s separate interest area (separate interest means that part of the property that is owned by an individual such as a unit or on a lot)?

[Cause] What or who caused the problem? Can the cause even be determined? Are there disagreements as to the cause? Was negligence, carelessness, or intentional conduct the cause?

[Past Practice] Has this problem come up before and how was it handled then? Are there any issues likely to arise about what has been done in the past?

[Legal Exposure] Is there any advantage or disadvantage, problem, or legal exposure if the association does the repair and it turns out that it was not the responsibility of the association, or vice versa with regard to an owner(s) making the repair?

[Precedent] Would the association benefit by retaining control over the repairs and what is to be done, or set an undesirable precedent?

***

It is important to consider all of these things …and then … there is a lot more to doing the right thing and averting disaster. The NEW! Maintenance Primer available on my website at www.californiacondoguru.com contains comprehensive information about who fixes what in an HOA or Condominium Association and addresses policy setting. Additionally, ECHO (Executive Council of Homeowners, www.echo-ca.org) recently published Part I and will publish Part II of an article on the subject written by me in the ECHO JOURNAL. (And ECHO is a great resource - check out the annual seminar coming June 19 – what a place to go if you want to get smarter about living in or running a homeowners association.)

Don’t be caught “in the dark” and wonder who is responsible for the lights!

Posted by Beth Grimm at 12:49 PM

October 11, 2009

Undesirable Neighbors in Condo or HOA - What Can 'Ya Do About It?

Someone next door is bringing in the homeless - is that a problem with a solution? I get many questions about neighborhood issues. The rights of owners in a Condo or HOA are different than those in a subdivision without a homeowners association. There are more options in an HOA or Condo than the regular old subdivision - so there ... there are some good things about being in an association! (Some people wonder because there is a disturbing amount of "bad press" out there.)

Here's the email I received about homeless trouble makers. It's not a crime or necessarily a bad thing if you want to take in a homeless person to help them out, but it can create problems. Read on.

"We live in [city eliminated to protect the writer], CA in a [medium sized - less than 100 unit] complex.We have a neighbor that has been disturbing the peace and quiet as well as bringing "friends" that are homeless .One of the neighbors saw him destroying property from common area. He has a record with the police who seem to be unable to do anything. Cars have been vandalized, property from porches has been stolen but no proof can be gathered.The only thing we can pin him for is disturbing the peace and quiet. Is there something the HOA can do ?"

I am not sure how the "homeless" contingent fits in here - maybe it's the homeless person's unfortunate luck to be associated with a "trouble maker" but to make sure I cover the question to best I can (addressing troublemakers and homeless hanging around HOAs), I will keep both topics in mind.

For people who violate rules, check the association documents for all the rights and remedies. Boards usually can consider disciplinary action (which could include fines, penalties, reimbursement assessments, suspension of rights, etc.) upon the owner of a unit for actions of any of the residents or guests allowed in the unit (whether the homeless, their friends on probation, the problem child, the senile great aunt, etc.) if they have "enough" proof, which may even include only "circumstantial evidence". The law requires various forms of "due process" including notice of the problem and a hearing, circulation of (fine) penalty schedules to the members and the like. Some attorneys even say that there has to be a witness and the accused must have the opportunity to "cross examine" the witness.

I don't go that far. If there are a number of problems surrounding a unit that begin when new residents move into the neighborhood, suspicion about those residents and their "guests" or visitors might be justified and so additional "investigative" measures might be smart. Calling them to a hearing might elicit further information - in fact - many "guilty" parties cannot wait to tell the Board why they have a right to do what they are doing or why the Board can't do anything about it. Who needs a witness for that?

For people who are homeless and "hang around" - the police can be called and yes, people in HOAs and Condos have the same right to police protection as those who do not live in the HOA or Condo, as we all pay taxes for police protection and anyone who hangs around who does not belong on the property is trespassing.

So what is better about being in an HOA or Condo? (1) There are usually specific rules, (2) there is an association that has enforcement powers, (3) the Board usually can do something to address a nuisance, and, last but not least, (4) owners can also enforce the rules!

Yes, cities can do code enforcement in a subdivision; however, the (1) rules and boundaries are not generally as clear between code violations and CC&Rs (as the recorded regulations are called in California) and rules, (2) there may not be enough teeth in codes regarding nuisance situations, and (3) many municipalities lack the resources to address code violations.

So there you have it. In an HOA or Condo you have two possible layers of enforcement, i.e., code ordinance by municipality (yes, code ordinance enforcement applies in HOAs too), and board or neighbor for neighbor nuisance situations.

Posted by Beth Grimm at 11:55 AM

May 6, 2009

More on Hardwood Floors/Allergies/Intolerable Noise

Some days questions come in that make me take pause as there is no easy resolution. Here is one that recently came in:

"We have a section in our CC&Rs that state that no unit can install hard-floor coverings when they live above a unit, and/or make alterations that will increase the sound transmission from one unit to another. The Architectural Committee at my community approved our upstairs neighbors to install hardwood floors throughout their unit because [of allergy issues] to carpeting. Now the footfall noise has increased tremendously to such a degree that we cannot sleep if our upstairs neighbors are awake. ... I don't know how we could ever sell our property with the degree of noise that is now being transmitted from above. ... I was not made aware of this application or approval until I heard the construction going on above me and asked about it. Does the Architectural Committee and/or Board have the ability to unilaterally approve such an exemption without my involvement when it would impact another home owner (me and my family) so tremendously?"

This is the long and short of it.

**Most documents do allow boards or architectural committees to make decisions about alterations.
**Some documents have restrictions that would effectively limit what can or cannot be approved.
**Laws through cases and statutes do exist to protect people with disabilities and assure that they, too, can have quality of life, and boards have to deal with those potential issues when considering requests like this for alterations.

So many times, a board is caught between a rock and a hard place (or should I say ... a hardwood floor).

What are the options in this situation?

Boards and ACC:

Check with an accoustics professional BEFORE APPROVING ANYTHING to see what the options are for protecting the neighbors below! And require that cork or some equivalent type of underlayment be included in the installation.

If this was not done ... then the problem is left in the hands of an owner, and an association may be exposed to some possible repercussions.

Other things for all parties to look at:

Rugs and padding that are made of nonallergenic fibers for the areas where traffic occurs. With active children, these tend to be the areas of the longest stretch of running capability.

Rubber based floor coverings such as those used in commercial buildings that deaden noise.

Felt or other soft protecting coasters for furniture and tables holding speakers, TVs, etc. and all furniture, and appliances that have noise making capability.

Requiring removal of shoes - wearing soft sole shoes or slippers when in the home.

Speaking in lower terms as noise echoes through rooms with hard surface flooring.

White noise machines.

Communication, communication, communication.

When parties clam up or retaliate, the problems escalate. Irresponsible actions lead to lawsuits and these are some of the worst for all parties because there is no easy resolution. If parties are obstinate, and the aggrieved party cannot get any kind of satisfaction through attempts to communicate, these are options:

Seek mediation of the issues. If the neighbors or board won't talk to you, call a local mediation service and see if they can get the other parties to the table.

Seek recovery for nuisance in small claims court. Perhaps a hearing officer can help prod the parties to take more assertive action to address the noise issues ... the claim would be nuisance, the request would be for monetary damages, and you can talk to the small claims court advisor about how to file. Some small claims courts have classes on filing a small claims action.

Seek an injunction ordering some kinds of accomodation. For this you will need a lawyer. Also, sometimes a letter from a lawyer laying out the legal possibilities and claims can engender more cooperation or bring a party to the "mediation" table to avoid protracted legal claims.

Posted by Beth Grimm at 6:07 AM

January 28, 2009

DOES A CONDO COMPLEX HAVE TO HAVE A BOARD?

The following is a question I received recently.

"Does a condo complex have to have a board? Why can't we just abolish the board and simply hire a property manager as apartment complexes do? Where can I find info about this concept?"

A COA (Condo Owners Association) - and the same applies to an HOA (Homeowners Association) can decide collectively that it wants to do away with a board but I would not recommend it. It would probably require an amendment of the Bylaws as I have not seen any that do not provide for a board. I have seen the chaos when there is a lack of strong leadership in any community. Take the chaos times ten if there is no board.

There are exceptions of course, in some smaller communities, where the owners have taken it upon themselve to manage the COA. In that case, the owners are essentially acting as the Board, collectively. The Bylaws can be amended to provide that all owners are board members. Again, I have a hard time recommending that simply because I have seen the chaos and fighting when there is no strong and decisive leadership. In any COA that is working, that is what you will find, strong and decisive leadership with the capacity to gain consensus.

A COA can hire a manager and pass on much of the daily duty type of stuff, but it cannot pass on the liability for errors and so if a board or COA hires a manager and tells them to "run with it" without providing any guidance or oversight, that, too, can lead to problems.

That said, many COAs and HOAs are experiencing difficulty in getting anyone to serve. If unmanaged or self-managed, it might be easier to get board members to serve if there is an intermediary doing the research, learning the lay of the land, and advising the Board on the proper way to manage the HOA, and running interference with (or providing a buffer from, depending on whether you are a "half empty" or "half full kind" of thinker) the deadbeats, rules violators, etc.

I also would caution any COA or HOA that lets itself cross the line trying to be like an apartment. Landlords generally carry more risk of liability for what happens in any of the units than an HOA Board.

What is needed is some kind of reasonable leadership, and/or some money to pay for a manager. And that will have to come from the membership.

But thanks for sharing your concerns. You are not alone.

Posted by Beth Grimm at 10:48 AM

January 26, 2009

Smoking in HOAs - Is it a Fundamental Right?

Smoking, should we feel sorry for the smokers, or those who have to smell it?

Many want to know if HOAs can ban smoking in common areas, exclusive use common areas (like balconies and patios), or in units.

There are more decisions coming down all over the US on smoking, and the ones I have seen are not in favor of the smokers. There are more City ordinances banning smoking in public areas, office buildings, restaurants, bars and office buildings. So, should we feel sorry for the smokers?

I guess we should feel sorry for anyone that can't kick the addiction but luckily, the spreading interest in protecting the public from smokers helps some. I was a smoker years ago, I had a hard time stopping, but when the ban in California reached restaurants and office buildings, it became harder to smoke than to not.

Yes its hard to stop, but there is no civil liberty disturbed or fundamental right violated when smoking is banned. Smoking is harmful to the smoker's health, and those around the smoker. I have friends that smoke, but I can hardly spend time with them because they always have to go off and take a smoke break, and so I either sit alone in the restaurant or stand outside to talk to them, neither of which is pleasant. When I have friends over, the two smokers spend the evening outside off by themselves and everyone else hangs out and visits. I find myself spending less and less time with these friends. Besides the nuisance, I see them slowly killing themselves and each other with the double dose of smoking and inhaling the second hand smoke of the other.

So besides the health issues, it adversely affects friendships.

And as for banning smoking - we would not let people spray bug spray in our faces, should we let them blow smoke?

I usually try not to take sides on serious issues here in the blog, because I want to present both sides to the public, as an informational thing, and commonly look for balance, but on this one I am firmly on the side of the non-smokers, and so, I believe, is the law.

There are cases that support bans in the common areas, including exclusive use common areas. As for smoking in units, if it is happening and there is no reasonable way to block the transmission into neighboring units, I believe it clearly qualifies as a nuisance.

There is no fundamental right to smoke. And don't get me started on those stinky, offensive cigars.

Posted by Beth Grimm at 9:09 PM

January 5, 2009

SPA NOISE - WHAT IS REASONABLE!!

Having to endure noise from the neighbors? The pre-eminent question is: "What is reasonable noise and what is not?" I like the "take it to the judge rule" using the small claims forum, if you cannot get any relief in working with the neighbor.

However, there are steps that should be tried, first. Here is the email triggering this particular subject (but these principles could apply to other situations as well, such as stereo noise, windchimes, dogs, etc. as well)":

"Over a period of 12 years my wife and I have lived in 5 different CA HOA assoc. I currently live in a community in Calif and the CC&R's do not identify hours of use of pool\spa at a home. My neighbors pool\spa pump motor is 8 feet away from my master bedroom. She runs the motor from 6AM to 11PM if she is entertaining. If not she may turn it off at 10:30PM. This is for 7 days a week. I have met\talked to her requesting she use the timer and set it for 10:00PM. She ignors my request! I have read this requirment in other CC&R's but it doesn't exist in my current CC&R's. I would like to know what is stated as a requirment by the CA Legislation? My wife and I are both senior citizen's and are not well. My wife requires a lot of sleep. She must use the front room during the day."

First, I have to say here that these people seem very accomodating about the noise. They have accepted that the wife must use the front room to sleep during the day, and even suggest that 10:00 at night is a reasonable time to make sure the spa is silent.

I have to agree!!! Reasonable daytime noise is one thing, late night noise is completely another.

I have a spa and do not have to run the motor all day and night to keep it warm enough and working. These people could:

Ask the Board to consider implementing reasonable rules related to spa noise ,,, and enforce them.

If the Board is unwilling, prepare a nice letter asking the neighbor to adopt a reasonable schedule of running the spa when not being used. Some research could be done to find out what a reasonabled expectation is for the motor having to run (no one that I know of sits in their spa more than an hour or so a day anyway - it has to run a certain amount of time to warm the water, but not all day). From the research, make some reasonable requests. I think its fair to ask the spa not be used after 10pm.

If the neighbor is not willing to discuss it, contact a local mediation center - each county gets funds to provide to mediation groups that provide no or low cost services for neighbor disputes and the like from a portion of court fees. Ask them to try and get the neighbor to participate in mediation.

If she is still unwilling, take your letters and concerns to the small claims court. Ask for monetary damages for nuisance. The court administrator (every small claims court should have a phone number) can help you understand the process.

If a small claims hearing officer finds your requests unreasonable, then its a dead end pretty much. But it I am a reasonable person and I think you are being reasonable. It's a matter of establishing a reasonable paper trail, making reasonable efforts with the HOA and the neighbor, and then, if no one will work with you, "taking it to the judge".

Posted by Beth Grimm at 8:16 PM

August 2, 2008

HARDWOOD FLOORS - CREATING A NIGHTMARE ALL OVER CALIFORNIA

This subject crosses over into so many areas in HOAs that I just added it to several categories: enforcement, neighbor-to-neighbor issues, board frustration, owner frustration, legal issues, general CID issues, etc., etc. Here are a bunch of sorry stories sent to me via email and notice the twists:

FROM BOARD MEMBER/OWNER: I am the _________of the ________HOA in _______. A couple years ago we changed our 20 year policy against hardwood floors when one of the owners agreed to install sound-dampening underlayment and get signed “approval” (something akin to a memo of understanding?) that they were OK with the installation. The then-seated board bought into this and now it’s the policy under our architectural guidelines. Now all downstairs units who go to sell after signing the form approving upstairs hard surface flooring have to disclose that agreement to prospective buyers. Personally, I would NEVER sign such an agreement for my upstairs neighbor, but I wonder if she’d sue me for refusing to sign it and thereby not letting her increase the (perceived) value of her unit? It seems like anything is possible in lawsuitland.

This angers me to some extent because I bought a second floor unit (rather than my preferred upstairs choice) because at the time of my purchase the old “no hard surface flor in upstairs units” policy was in effect. Since I wanted hardwood, I had to buy downstairs. Ugh."

UNFORTUNATE DOWNSTAIRS OWNER: I live in the lower unit a condo complex, it's and very small (16 units) and very old building (built in 1950) a few months ago the unit above me was sold and before the new owner moved in she had the carpet removed and the original wood floors refinished....I'm going crazy, I've dealt with it this long because the owner lives alone and I console myself with the fact that she has no children or pets but even with just one person creating the noise it's still a huge problem, she keeps odd hours a frankly the lack of a buffer makes the sound of everything she does travel right into my home. I know she didn't consult the board before doing this because I'm on the three person board, but I also know that our Rules and Regulations don't anything with regards to flooring, only that no noise from one unit should be heard in another unit. I'm worried about how this will affect my property value or ability to rent the unit, especially if she sells or rents to people who do have children or pets.

OWNER LIVING UPSTAIRS THAT CONVERTED TO HARDWOOD FLOORING AND HAD CHANGE IN FAMILY CIRCUMSTANCES: We had our laminate flooring installed over a year ago. We asked our neighbor if he/she had any noise issue and he/she said no. Then our circumstances changed. We [had a baby, got a dog, had a relative(s) move in temporarily, got a new stereo system, a large plasma TV, new speakers, etc.]. The neighbor started complaining about the noise."

The notes go on to say that these writers had obtained architectural approval and that the underlayment that was presented to the Board/ACCs was considered sufficient. And so these owners want to know what they can/should do about the complaints. Two of the writers are selling, and have their properties in escrow, and want to know what to do about disclosures.

The following additional questions were asked:

"Do we have to get acoustical testing done if [the Board/Neighbor] asks for it?"

"If the [Board/Neighbor] decides to sue us for nuisance, would he/she have a case?"

"If the neighbor had complained about the noise earlier we could have [asked the contractor to fix the problem/added some padding or changed the accoustics], but now, we do not know what to do."

"Our board has been notified about the problem - [we] do not know if they will get involved with this issue."

ANOTHER UNFORTUNATE OWNER LIVING BELOW UNIT THAT CONVERTED TO HARD SURFACE FLOORING: I am the original owner of a condo flat that I purchased 15 years ago. Way back then the original builder wisely did not allow hard surfacing flooring in the above units because of the noise level. It was for this reason that I bought the lower unit and I have been happy ever since.

In September of 2007 the unit above me changed hands. It turns out the buyers wanted to put in hardwood floors. The selling real-estate agent (who happens to sit on the board) consulted the CC&Rs and told the buyers that there was nothing stating that hardwood floors were not allowed in the upper units and further that it wasn't even necessary to apply to the Architectural Review Committee (ARC) to make this improvement. For this reason, the buyer simply bought the unit and then removed the original flooring and put in hardwood everywhere.

Needless to say, this has created a tremendous nuisance of noise in my condo. Several months back I complained to the board. The board responded by telling me was no violation of any process or rule by the installation of the hard surface flooring above and that there is nothing I can do.

I've read the language of the CC&Rs concerning improvements and it clearly states that all Improvements that are affixed to the common building must first be approved by the Architectural Review Committee. When I raised the point with the board that the owners did not go to the ARC process, I was told that after launching my complaint, the ARC reviewed the materials used for the floor and that the ARC would have approved the work anyway so it would not have made a difference if they had gone through the normal process in advance.

In summary, a board member has profited from the sale of a unit that required the rules be bent, the board and the ARC have done nothing to enforce their rules, the members of the ARC know nothing of the original builders restrictions on hard surface flooring nor do they know anything about sound level guidelines etc.

This leaves the ball in my court. I have given my contact info to the owners upstairs but they won't get in touch with me. I suspect they don't want to since they believe they have nothing to gain as they have already installed the floor. The board and the ARC really want to sweep the issue under the rug I'm guessing because they don't want any trouble for themselves.

I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit? I really think if I can show the new owners/board/ARC that they have violated some rule or process that would allow legal action to be taken, they might do something to remedy the situation.

****
So, here are some key questions that I have answered before, and will answer again:
I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit?

With regard to any given flooring-noise related issue that is brought to my attention, I cannot of course say unequivocally one party [among whom might be the board, the upstairs neighbor, or the downstairs neighbor] is right or wrong, or would win in court if suing or being sued. All I can do is set out a sense of what questions might arise and let the parties or their attorneys have some criteria to consider. The bottom line is that the courts are not really very good at solving these issues unless there is a clear cut "wrong" that can be identified, and in some cases, there is not. I have heard from readers who want to sue, and also readers who have sued or been sued and ended up in court spending a lot of money without getting a satisfactory result. So, I recommend the best course of action is to get all of the possibly culpable parties to the table with a good "neutral" party, possibly a mediator or facilitator of some kind - to see if there is any possible resolution short of ending up in court. If you have been reading my blogs on this subject, you will in fact have seen suggestions for EVERYONE involved, whether the victim of the noise or the perpetrator, or the Board of the HOA. Without reiterating every blog, I will go back over the basics.

1. It is my belief that hard surface flooring added in second story units causes many problems, if not on one day or with one set of residents upstairs and downstairs, then in the future with changes in lifestyles/residents.

2. There are certain questions to ask when reviewing these types of issues with the view toward either "presenting" incentives to get the people to the table, or toward taking legal action. These questions include the following: (certainly there may be more in any given situtation but these are the basic starting point):

Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?

Did you do anything to cause or exacerbate the noise issue(s)?

Did you do anything to mitigate or minimize the problems or condition leading to the problems?

Did any of the parties violate the governing documents in their actions?

Was there any requirement or duty to make disclosures?

If so, were those disclosures made to the right party?

Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

Liability depends on facts and circumstances. Did any party have a duty to the other party? Yes, that of a reasonable, prudent person.

Did any party breach that duty to the other person? That is determined by the facts.

If so, did that breach cause the damages or pain and suffering, nuisance, etc.?

And finally, this is a key question that demands honesty:

Are you just part of the problem, or also part of the solution?

If any of the parties can prove the answer to be "yes" to these questions, there may be a case looming in your future.

Possible causes of action include: nuisance damages under the law for public nuisance and any document provisions prohibiting nuisances (yes, even if permission is given for the alteration).

Possible action for breach of fiduciary duty on the part of the board, the architectural committee, or even the developer, if any contributed to the cause of the nuisance by ignoring, refusing to honor, or leaving out architectural review provisions that allowed one party's actions to destroy the quiet enjoyment of the other party or made their home unmarketable or life intolerable.

Possible action for breach of prudent person duty against neighbor who puts modifications into play that destroy one's peace and quiet and make a home unmarketable.

Possible action for breach of fiduciary duty on the part of an HOA board that fails to enforce documents or reasonable standards in those documents.

Possible action for breach of fiduciary duty for inconsistent treatment of owners with regard to flooring alteration matters.

And probably a whole lot more ...

Take heart. These are serious issues. Do not set processes in motion (or lack thereof) that fail to recognize alterations to hard surface flooring in second story units can ruin people's lives. And even in a case where many problems already exist, and parties feel they are at the end of their respective ropes, there are usually additional things that can be done that they did not think of (some are noted in earlier blogs).

Property values are an important subject, of course, but come on ... peace of mind, restraint, understanding, compromise, and human compassion should be more important. Unless a building is CONSTRUCTED in a manner that focusses on eliminating noise between units, alteration of it in any manner that increases noise transmission ranges from risky to downright irresponsible.

This is such a common subject of my blogs, writings, and the emails I get that I have not only written articles and spoken on the subject throughout the Bay Area and some outer reaches, I have developed several publications with further information on the topic. If you check the publications page, you will see several items which include, but are not limited to, the following, that pertain in part or in whole to this topic and other nuisance situations:

BOOK: THE CONDO OWNERS ANSWER BOOK
PRIMERS:

***4 ON ENFORCEMENT INCLUDING ONE THAT FOCUSES SPECIFICALLY ON DIFFICULT NEIGHBOR-TO-NEIGHBOR ISSUES LIKE THIS ONE
***4 ON ARCHITECTURAL CONTROL THAT FOCUS SPECIFICALLY ON ALL MATTERS RELATED TO ARCHITECTURAL APPROVAL, THE PROCESS, PROBLEMS AND FORMS, ac-2 BEING THE ONE MOST TOPICAL AS TO HARD SURFACE FLOORING ISSUES
***E-NEWSLETTER ARTICLES - AVAILABLE IN ARCHIVED FORM - ON THE SUBJECT

These helpful items are available at a very low cost, given the amount of information contained within ... take a peek..... visit THE GURU (at http://www.californiacondoguru.com.

Posted by Beth Grimm at 1:45 PM

May 18, 2008

Retaliation is Never The Answer

Your neighbor is driving you crazy. It's the clack clack clack of the high heeled shoes and the long nails on the family dog on the tile floors above, or the thump thump thump and bang bang bang of the children running and jumping, opening and closing the doors. You have contacted the board, and been told there is not much that can be done about normal daytime noise. So, you decide to "get back" at the neighbors.

Think before you leap. Here's a true story.

It started in a condominum development for seniors. A beautiful downstairs unit came up for sale. The elderly couple, looking forward to retirement in this beautiful community was checking out the unit. The realtor was embarrassed because the resident that lived upstairs seemed to be walking around with heavy loud footsteps. She mentioned that the lady was 85, and must be wearing hard shoes. As it was, this had happened before. In fact, the seller had made a disclosure about the footfalls, stating that although there was only one resident, and she was about 85, the downstairs neighbors could hear the footfalls. Apparently, this woman had established that she did not want downstairs neighbors. Realtors showing the place had come to that conclusion because she was always home, and always "sstomping" around when the lower unit was being showed. However, one couple - potential buyers - were not deterred. They loved the place, and the buyers had discounted the price and were really motivated. So they bought the place. They told the realtor that they would just make friends with the woman upstairs, take cookies, get to know her and ask her to wear lighter sole shoes, or put down some rugs.

Months later, they came to the board. Neither the cookies nor the attempts to make friends worked. The couple asked the board to do something. The Board sent a letter to the woman upstairs and asked some questions, pointing out the problem. Suggestions were made that the woman (aka the 'stomper') wear softer soled shoes, house slippers, or place padded runners in the traffic areas of her unit.

Meantime, the neighbors below like the occasional "barbecued" dinner. They had moved in a gas grill onto their patio and grilled every Wednesday, once a week, like clockwork. The 'stomper' instead of agreeing to make any changes, said that she wore soft soled shoes, that she had rugs, and that she walked on them instead of the hardwood floors.
And, it appeared that the neighbor's complaints incensed her. So she complained about the barbecuing. She wrote to the board and said that it complicated her allergies and she wanted it to stop. In response to the letter to the below neighbors, the Board was told they only did it once a week. That did not seem unreasonable; the Board suggested that on Wednesdays, the stomper keep her balcony door closed. Instead, she took to sweeping her balcony and watering her balcony plants (I should say overwatering) on Wednesday evenings, when the below neighbors were barbecuing. Once they got 'wind' that the stomper hated the barbecuing, they started doing it every night.

Once again, the Board was contacted with the complaint about the barbecuing. The 'stomper' had hired an attorney and the attorney wrote and asked the board to put a development-wide moratorium on barbecuing.

That was clearly overkill. And the Board said "no". However, the Board did propose a solution. The Board arranged to have weatherstripping replaced on the stomper's slider since she was claiming the barbecue smoke seeped into her unit. And the Board wrote to the parties with these demands: the stomper was to look for a way to quiet the footfalls (such as adding traffic area rugs and padding or wearing soft soled shoes) and the barbecuing couple was told to move the barbecue to the other side of their home on a porch, so it would not be below the stomper's balcony.

Neither party complied. Both retaliated. The stomper started sweeping the balcony when the neighbors barbecued. They started barbecuing every night instead of their once or twice a week prior habit. The upstairs neighbor started taking a shower every night late, claiming that she had to wash off the barbecue smoke that had intruded. The downstairs neighbors started flushing their toilet while she was in the shower and turned their TV up loud afterwards. It went on and on.

Then they sued each other. Both sides had insurance carriers get involved. The carriers and the court had a hard time with this one. You just cannot always regulate human behavior, or get people to act reasonably.

Much money was spent. At one point the insurors came to the Board for architectural approval with something they thought might solve at least part of the problem - they had arranged for a specially designed barbecue with a smokestack. The Board denied the application as it did not want a large orange smokestack going up the side of the building where the golfers would have to look at it. It was "back to the drawing board" in the court process.

Eventually the judge "nonsuited" the parties, kicking them out of court, essentially. The newspaper touted "Judge Douses Barbecue Suit".

Even that was not the end. Both parties came back and demanded a Board hearing. All parties were "invited" to come to a board meeting. They brought their attorneys and their doctor statements and the below neighbor brought a DVD of the interview with his doctor stating how his health had declined. The Board's solution - one of the board members would meet with the parties in an attempt to get back some semblance of peace if, and only if, the parties would meet with a mediator or social services rep (they were all elderly), together, to talk.

Neither party would go in the same room with the other. The Board opted out of this. The lawyers threatened to sue the Board, the Board's attorney (me) mailed them the "Judge Douses Suit" story, and that might have seemed the end of it. It was not.

The husband of the couple below died, the wife sold their home and moved back to where their children lived, on the East Coast. I suspect they had to take a considerable loss since they had not only experienced, but exacerbated the situation of the "nuisance" upstairs. The stomper died.

End of Story....Do you want to end up in the same place? Then eliminate retaliation as one of your means of dealing with a difficult nuiance situation.

Posted by Beth Grimm at 9:52 PM

May 12, 2008

MORE ON FLOORS - WHAT IF YOU LIVE UPSTAIRS?

More about condo flooring/noise issues: what if you are the neighbor who lives upstairs with the down stairs neighbor complaining of noise.

These problems are not easy to solve. A couple of readers' notes have been combined in this series of questions:

"We had our laminate flooring installed over a year ago. We asked our neighbor if he/she had any noise issue and he/she said no. Then our circumstances changed. We [had a baby, got a dog, had a relative(s) move in temporarily, got a new stereo system, a large plasma TV, new speakers, etc.]. The neighbor started complaining about the noise."

The following additional questions were asked:

"Do we have to get acoustical testing done if [the Board/Neighbor] asks for it?"

So here are what I believe are some key questions to consider:

Are you just the problem, or also part of the solution?

Did you do anything to cause or exacerbate the noise issue(s)?

Did you do anything to mitigate or minimize the problems or condition leading to the problems?

Did any of the parties violate the governing documents in their actions?

Was there any requirement or duty to make disclosures?

If so, were those disclosures made to the right party?

Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

Liability depends on facts and circumstances. Does any party have a duty to the other party? [HINT: Generallly, the parties have a basic duty toward others to act as a reasonable, prudent person. Boards have a higher duty because of their "fiduciary" capacity which means they have some control over owner's assets. Developers have more specialized knowledge which might suggest they have a higher duty as well. By "higher" duty, I mean may have to be more careful, do more investigation, perhaps consult experts, etc., which is "higher" than having to just act reasonably.]

Did any party breach its duty to the other person? That is determined by the facts.

If so, did that breach cause the damages or pain and suffering, nuisance, etc.?

If any of the parties can prove the answer to be "yes" to any of these questions, they may have a case.

In the above examples, there are some things the upper floor owners can do - and maybe should do. After all, it may be incumbent on them to alter the situation, since it is their circumstances which changed after approval had been given for the floors and it was those changes that lead to complaints from a resident living below who had not earlier complained about the flooring. Getting ACC approval does not insure that owners will never have to answer to anyone if a nuisance situation develops.

So the upstairs owners might add some padded runners in the traffic areas, turn down the noisy speakers or TV, place padding under the new surround sound speakers, take the kids out as much as possible or set up their toys in the least offensive (with regard to the noise transmission) room, buy quieter toys or engage the kids in thinking or board games instead of in house running, jumping or throwing things.

Generally, each party can do SOMETHING to alleviate the "noisy" nuisance. Standing firm on principle (such as "I have approval for the floors", or "The neighbor did not complain before", or "We have a right to a quiet home all hours of the day", or "They did not even ask for approval for the floors") rarely leads to resolution of the problems. And unresolved, they tend to escalate into neighbor-to-neighbor battles, unrest in the home, and disclosure issues.

[Of course, I may be able to offer more insightful information and suggestions if I knew more about a situation and if any reader wants more specific information as to what they might or should do in their particular situation. A paid consultation can be arranged. Just go to http://www.californiacondoguru.com and look for the consultation form.

Posted by Beth Grimm at 9:06 PM

February 20, 2008

More on Noise - Can a Developer Be Held Responsible?

Just today, during my HOACHAT at noon on issues including noise and hard surface floors (which is a free offering you can join on Wednesdays through my website at http://www.californiacondoguru.com) one of the "attendees" asked: "Can a developer have responsibility when there are noise issues through the walls and floors of a condo?

Noise is a problem in many stacked and wall-to-wall condos. Sometimes alternations and modifications are made by owners in condos that were not meant for hard surface floors. But that is for another blog.

Sometimes a developer will tell you that space is left between the walls of the adjoining condos and that reduces the noise (well, sometimes they will say it eliminates noise transmission but I think that anyone - including me - that has lived in such a condo situation and fell for that line knows better). Sometimes the developer will say, "Sure choosing the laminate flooring upgrade is fine because we add soundproofing," and you think - "Great!" ... And you buy, ... and then experience - "not so great results." I wrote an earlier blog suggesting that the extra money developers collect for installing laminate or hardwood floors in stacked units or townhouses should be placed into a fund to be used later to mediate flooring noise issues. Maybe this sounded like a "flip" comment, but ... why not?

And the answer of course is "Yes", a developer can have some responsibility. And that is apparently what happened in a Colorado case back in 2005. The case took place in Arapahoe County Colorado and it is reported that some of the residents were awarded punitive damages against the developer (as much as $150,000 each, plus costs of trial) and others settled with the developer before the matter came to trial. The owners' attorney's name as reported is David TeSelle. The articles say that the developer had to outfit units with soundproofing materials

I am not representing that this case controls anything in the legal arena, and there is always more to anything than meets the eye. If there were lots of big cases granting damages for noise pollution, builders and architects would have moved noise control to the top of the list of concerns. It does not appear to me that this has occurred, because the noise complaints continue to rage all around the state and in fact, in the nation. I have not located appellate level cases on this subject but feel free to send me some if you read this and know of some so I can add them to my musings.

But I am saying take heart, anyone can be sued for anything, and (hopefully) in matters that escalate to litigation, the culbable party or parties will be "outed" and have to compensate those that are wronged or taken advantage of. I am a California attorney and do not know Colorado law, or the particulars in the Arapahoe County case; however, further research could be done if one wanted to find out more.

My point in discussing this case and this topic is to say that developers need to get on board. And owners need to speak up, to the developer, to the homeowners association, and to each other, if there are noise issues in your building (unless, of course, you want to "move out quietly").

If you visit http://rismedia.com you can find an article about buyers and sellers combatting noise issues, and the gist of the article is that condo builders and architects should take heed. Certain building design and construction is critical if one wants to seriously reduce or eliminate noise transmission between the units.

The article says that while developers or architects might at first refuse to make noise isolation issues a priority because of the cost, they may come to their senses the next time around and spend the money, if they are plagued with complaints from the residents of a building they were responsible for. The article acknowledges that "Quiet does not happen by accident, it has to be engineered ..." and suggests that when you are thinking of buying a condo, it makes sense to set up a sound test, like making sure the neighboring toilets are flushed, the jacuzzi tub next door is filled (and I assume the jets are turned on), the neighbors walk around in their usual foot attire, and run televisions and sound systems.

Nice thought, but it could certainly slow down sales, in more ways than one, especially if potential buyers are given access to current resident neighbors. Short of such a comprehensive test, I think it wise to make sure you have the opportunity to go into a unit during the day, and at night as well, that is next door to a condo with active kids, even if it is not the one you are slated to buy. There is a probably a very good reason that "models" are often built close together and often isolated from the "inhabited" condos or townhouses.

Is it fair to expect a noise-pollution free environment in a condo or townhome? Maybe, if you are willing to pay a premium for it, but in most cases, probably not. But it should be fair to expect that you will not hear the neighbors whispering, talking at low volume, getting a drink of water, having sex, watching TV at a reasonable volume level. If you want more protection, ask developers about the construction of the walls, floors, and ceiling, and whether there is any vibration reducing construction, and write it down, and then talk to an accoustic specialist. This bit of information might help you if you want some more comprehensive research before buying. And accoustics specialists can also be located on the web.

Noise isolation and control may be moving up the priority list of amenities, and well it should. New technology encourages wall mounted window sized TVs, and surround sound systems.

Noise disputes are never easily resolvable, and they make people do things they would not otherwise ever consider doing! And worst of all, they make people sick! If you do not believe me, visit http://newscientist.com and read the articles including one entitled "Hidden Harm from Noise Pollution". In the article which appears in issue 2365 of the New Science magazine, December 22, 2007, the article claims: "Noise kills in much the same way as chronic stress does, by causing an accumulation of stress hormones, inflammation and changes in body chemistry that eventually lead to problems such as impaired blood circulation and heart attacks."

Now, don't get me wrong because while I am saying that noise pollution or transmission disturbances in condos and townhomes can be insidious and must be taken seriously, I also believe that all parties should work toward resolving the issues by means other than litigation. Just because there is noise, and just because it is disturbing, that does not mean there will be big bucks in your future. Visit earlier blogs to help sort out how culpability might be determined, and do not expect that this will be the last blog on the subject.

Posted by Beth Grimm at 8:54 PM

February 14, 2008

STOP THAT INFERNAL WALKING!

This is my 301st blog! Thought it worthy of some unusual step. Since I have on my plate neighbor to neighbor issues today, I decided to give neighbors their own category on this blog.

So, to kick off this special day, I have more to offer in the way of determining fault, options (or lack thereof) and solutions (to the extent there are any) on issues noise related - namely, to hard surface flooring. By the way, if any of you out there are claiming that you cannot live below carpetted-properly padded unstairs rooms, consider yourself lucky, because there is a whole world of unhappy owners out there living under hard surface flooring, and its getting worse every day because there are more and more and .... (well,. this seems a good place to stop with the madness).

So here is the latest that has come to my attention. Different sources sent me an article entitled "The Case of the Upstairs Condominium" apparently written by a flooring person or an attorney, I am not sure which. None of the parties identified the source of the article (naughty naughty) so I do not know who to thank (except if your initials are DLW give me a call or an email and identify yourself, and I will give you full credit). You may be asking me what a flooring person and an attorney could have in common. The article said that the person had received several calls in recent months from homeowners and homeowner association boards about noise issues related to hard surface flooring. That could be a flooring person or an attorney, right?

Anyway, to get to the point, the article talked about a "test" that can be performed to test "the level of noise transmitted through the assembly ..." of a sound level meter. It takes a specially trained accoustics specialist to read the noise from upstairs created by a specialized piece of equipment called "a tapping machine". This machine, according to the article, imitates the impact on the upstairs floor created by a person walking. The measurement from this test can be expressed as a single number that is called "Impact Insulation Class". According to the article (and by referring to it, I guess I cannot be "blamed" by anyone if this is incorrect information), California's "Title 24 Standards require that floor/ceiling separation assemblies between units in miltifamily developments achieve an 'IIC' rating of not less than 45 when field tested."

So I will add this to my list of considerations published earlier, when one is considering what to do about a noise problem related to hard surface flooring, which (now) is reiterated in a (new) list of questions to ask. As for the HOA, the developer, the flooring installer, or any other party that might be confronted with a noise-flooring issue here are some pertinent questions to ask:

**Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?
**Are you just the problem, or also part of the solution?
**Did you do anything to cause or exacerbate the noise issue(s)?
**Did you do anything to mitigate or minimize the problems or condition leading to the problems?
**Did any of the parties violate the governing documents in their actions?
**Has anyone arranged for an "IIC" or other flooring impact analysis test to be done?
**Was there any requirement or duty to make disclosures?
**If so, were those disclosures made to the right party?
**Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

I cannot say that this "IIC" test will make or break any situation. First of all, I do not know if it is well recognized in the industry and by the courts (feel free to send me info on this). And, I do not believe it is necessarily the end of the inquiry. As described, it presents a test with a minimum standard, and I for one believe that the standards for condos should be higher than apartments because if someone does not like the upstairs noise in an apartment, they can move. They have little to lose. When one purchases a condo, the solution is much more complicated. If they remain quiet, they risk having a disclosure issue come up after sale. If they make noise, they risk creating an issue where one might not be there for the next person. Believe me, peoples' tolerance levels seem to be all over the map - and when "friends" live upstairs, people are much more tolerant than if they have nothing in common with the upstairs neighbors.

But, the saga continues. And I will continue to say that if attorneys continue to tell developers not to put limitations on hard surface flooring un upper stacked units, and attorneys continue to tell HOAs not to put stringent limitations and standards on the installation of hard surface flooring, and owners continue to be discourteous (like placing speakers on hardwood floors and turning up the base, like refusing to try any form of carpet or padded runners in traffic areas, like giving the neighbor who complains the finger instead of listening to what they have to say), the problems will not go away.

Of course, before condemning attorneys, I should say that the attorney does not make the ultimate decision on what goes into the governing document or the rules or standards. The developers and HOA boards do that. In every set of docs I have written in the past 20 years (ugh, has it been that long) that involves stacked units, I have advised boards to put some limitations or restrictions on hard surface flooring in the upper units. More than half, probably more than 90% (I lost count) have heeded my words and done it, but those that rejected my suggestion either could not fathom that it could ever raise an issue, have put property values ahead of human values, or have had or were considering converting to hardwood or laminate floors. Had they put limitations on the flooring, at least, if the HOA did not want to spend the money to sue someone who installed hard surface floors without getting approval, the neighbor below would have a potential remedy for the violation of the documents. However, this sometimes falls on deaf ears.

It seems simple to me. If there is a prohibition on installing hard surface flooring in upstairs units, or there are standards involving installation of cork or some good form of padding below the new floor, or developers go the extra mile to add good and true soundproofing materials below hard surface or laminate flooring, it eliminates a major problem. That problem is the awful situation that occurs when the parties might otherwise be willing to resolve the issues but are left looking at major reconstruction (raising other potentially serious issues) involving both the upstairs and downstairs units as the only remedy.

People. Wake up!

Posted by Beth Grimm at 11:18 AM