Neighbor upstairs wants to violate CC&R bylaws with hardwood flooring

[andyhuang]

Hello TI

I own an attached rental unit in Irvine where only one unit is above is attached to us.  One of my tenants was served a notice from the upstairs unit landlord.  The notice states that the landlord above us wants to install hardwood flooring and wanted us to sign the HOA neighbor awareness form.  The upstairs owner promised us they will use the best insulation.

The form did state that it is still up to the review committee to decide the final outcome and that they welcome comments by the neighbor but it is not a main deciding factor.

According to the HOA CC&R bylaws article, there is a specific section that states that all units above are prohibited from installing hardwood floors unless those that are marked in exhibit C.  Exhibit C only shows that they can only install it in the kitchen, main door hallway, and bathroom.  The remaining areas must be carpeting.  But I believe the upstairs homeowner would like to install it throughout the entire area including the dining room, living room, bedroom, and connecting hallways.

Our tenants do state that they can occasionally hear door closing noises, foot-step thumping, and when the neighbors walk in high-heels in the entry walk-way.  So I'm not entirely convinced that any insulation would improve noise unless some form of foam special noise absorption insulation was installed.  But that would require ripping up the subfloor and doing all that work.

We have contacted the upstairs owner and voice our objection to the installation.  At the same time, we have informed our HOA that they need to enforce the bylaws otherwise it would be considered a breach of contract. 

Does anyone have experience dealing with this, and was just wondering, how strong is our case, and whether or not legal action could result?  If we were to pursue legal action against both the HOA for failure to enforce/breach of contract and the homeowner above, is this a worthy battle and sure-fire win for us?

I have done some preliminary research and it turns out that it is possible for a homeowner to sue their HOA and win for failure to enforce the CC&R.  Thus, we immediately informed our HOA in writing of our objection and also let them know that if they do approve any designs that violate the exhibit C, we will have to seek an attorney, which possibly names both the HOA and the upstairs owner as a defendant.

Thank you.

 

[socal78]

The form did state that it is still up to the review committee to decide the final outcome and that they welcome comments by the neighbor but it is not a main deciding factor.

According to the HOA CC&R bylaws article, there is a specific section that states that all units above are prohibited from installing hardwood floors unless those that are marked in exhibit C.  Exhibit C only shows that they can only install it in the kitchen, main door hallway, and bathroom.  The remaining areas must be carpeting.  But I believe the upstairs homeowner would like to install it throughout the entire area including the dining room, living room, bedroom, and connecting hallways.

Re: the first part. It is not up to a review committee to decide who gets permission to violate CC&Rs and they definitely don't have the right to change them. Even the Board can't do that.

Re: the form: It doesn't make much sense. Got a censored pic you can share? There should be something in the fine print stating it has to follow CC&Rs. Check the back or bottom of the form.

CC&Rs are put in place by the builder and run with the property. Anyone who buys in the community automatically agrees to abide by this contract. They face consequences if they don't. To amend CC&Rs, it has to be put to a community-wide membership vote and a quorum must be reached, if possible. I don't know how old your condo is. If it's fairly new, there's about zero chance there's been an amendment since those changes are made sparingly. However, if it's an older community, that may not be the case. Rules & Regs may have been added but they may not contradict the CC&Rs. They can only pick up where the CC&Rs left off. You could always ask the management company if there has been an amendment to the CC&Rs regarding the flooring issue since the time that you received your packet when closing on your unit. Again, highly unlikely, but that's still something I would have done to exclude the possibility before directly threatening a lawsuit. Who knows, maybe the coverage area was amended and now it's just the flooring material itself they're seeking approval on. If you need an updated copy of the CC&Rs, the mgmn't company will probably have you fill out a records request form for processing your request. It should only cost about $15 and it may even be free.

Imo, you have a strong case. Just stay on the right track.

Disclaimer: I'm not an expert or an attorney. I just work in HOA / community management & property management. Also a homeowner in an HOA.

 

[peppy]

HOA awareness form is just that - to make you aware that something is happening but it does not record your consent or objection to it. These tend to be sent out by the homeowner and the HOA will collect the signed forms as part of their review process. In many cases, they don't even bother looking at the application until all signed forms are received (or there is a max. time lapse that will kick in - 30 days?).

Once they look at the application they may approve, deny or request more information. 

It is in your best interest to get in touch with their review committee and point out that what they are planning to do is against the CC&Rs. Most likely they are already aware of this and plan to deny the application. However, there are plenty of cases where you'll see things that have sneaked past the CC&Rs. Once it gets approved it becomes a much bigger pain to deal with.

 

[socal78]

It's funny because where I live, signing the Neighbor Awareness Form only indicates you're aware. But where I work, it says you're aware and you approve. It just depends. Definitely read it before signing.