Thank you for responding Tranquility. I will gladly give the facts.
What is being requested?
Hardwood Floors throughout the entire unit.
What does the board want to do?
It's more along the lines of what the board actually has done. The Architectural Committee approved the request for hardwood floors.
What is the specific portion of the CC&R which is violated?
This is pulled verbatim directly from a copy of the CC&Rs.
5.4 ALTERATlONS TO UNITS:
No Alteration of the walls, ceilings and/or floor coverings of the Unit may be made which will result in an increase in sound transmission into any other Unit. Only soft-cover floors may be installed on floor levels located above and adjacent to any other Unit, except for replacement of any hard coverings in kitchen, bath or other areas where such hard coverings were originally installed by Declarant.
So in other words, carpet cannot be replaced for hardwood floors. It should be noted that this unit that made this request originally had wall-to-wall carpet. Furthermore, our entire building is brand new, only 2 and a half years old. So the homeowners that made this request for hardwood floors are requesting to replace the original carpeting with hardwood floors. In addition, the hardwood floors that have now been installed, have drastically increased the sound transmission into the unit below.
What do the CC&Rs list as the power of the board?
This is pulled verbatim directly from a copy of the CC&Rs.
11.4.2 Powers: The Committee may adopt procedures for the transaction of business, scheduling of meetings, conduct of meetings and related matters. The Committee may also adopt criteria, consistent with the purpose and intent of this Declaration to be used in making its determination to approve, conditionally approve or deny any matter submitted to it for decision.
11.4.3 Consultants: With the consent of the Board, the Committee may hire and the Association shall pay consulting architects, landscape architects, urban designers, engineers, inspectors, and/or attorneys in order to advise and assist the Committee in performing its duties.
11.6 BASIS FOR APPROVAL OF IMPROVEMENTS: As conditions precedent to approval of any matter submitted to it, the Committee must ordinarily be able to find that (i) the plans and specifications conform to this Declaration and to the Architectural Standards in effect at the time the proposal was submitted and (ii) the proposed Alteration will be aesthetically consistent with the other Improvements in the Project as to harmony of exterior design, landscaping, color schemes, exterior finishes, visibility with respect to existing structures and environment, and placement of structures with respect to topography and finished grade elevation.
I would argue that the approval of the hardwood floors directly above another unit is not consistent with the purpose and intent nor conform to our governing documents when they made their decision to approve the request as the purpose and intent of section 5.4 of the CC&Rs was to protect other homeowners from changes being made that would negatively impact another homeowners unit by increasing the sound transmission through the walls, ceiling or floors.
Give the facts.
* For the two units affected, all units in this condo complex are directly above one another. Bedrooms directly above bedrooms, living rooms above living rooms, etc. Units are directly above one another are identical.
* The architectural committee approved this request because the father and mother believe their 2 year old daughter has carpet allergies and they were able to have a doctor sign off on a note stating as such.
* In the first HOA meeting that was held following the installation of the hardwood floors, the architectural committee revealed that they initially denied the request. However, after an appeal, it was approved based on the advice of one of the employees of the management company our HOA uses. To paraphrase the advice, it was stated that if they were to deny the appeal, that the board could potentially be sued. And so the approval was given based on fear of legal action. It should be noted that the employee of the management company is not an attorney, and the attorney that our HOA has on hand was not used to provide legal council concerning the matter before approving or denying the appeal.
* Furthermore, in that same HOA meeting, they also revealed that they were either misunderstood or were ignorant of section 5.4 of the CC&Rs. It was the initial understanding of the HOA Board and Architectural Committee that the CC&Rs stated that hardwood floors were not allowed in bedrooms, but living/dining rooms were allowed. As a result, the upper unit homeowners were actually putting in an request to the architectural committee for an exemption to this non-existent rule when in reality hardwood floors are not allowed ANYWHERE in a unit where soft-coverings are already in place. This mis-understanding is evidenced also in the document providing approval by the architectural committee in which it states, "Upon sale or moving from the unit the bedroom/s must be re carpeted."
* Furthermore, in that same HOA meeting, after the HOA Board and Architectural Committee became aware of the true meaning of section 5.4 by the lower unit homeowner, they moved, seconded, and passed a change stating that they will no longer approve hardwood floors at all. This is evidenced in the minutes for the last HOA meeting.
* Finally, in that same HOA meeting, the President of the Board who is also a member of the Architectural Committee admitted that the approval of the installation of the hardwood floors was a mistake.
* The architectural committee did not involve the homeowner of the lower unit in this decision nor did they advise them or give them any forewarning that this change was going to be made. The lower unit homeowner only became aware of the installation of the approved hardwood floors due to the loud construction noises going on and asked the President of the Board via email which he replied to and confirmed.
* The architectural committee did not provide any concrete and/or specific guidelines to the upper unit homeowner to be followed for the installation of the hardwood floors in order to maintain the current level of sound transmission or reduce it. In fact, it was incredibly vague and allowed the upper unit homeowner a great deal of freedom to install hardwood floors with as much or as little sound reduction qualities as they wished. As stated in the approval to the upper unit homeowners from the architectural committee...
1. All permits from public agencies be applied for and granted (if applicable).
2. Construction is in accordance with the plans submitted and approved.
3. All work must be in compliance with local building codes and requirements.
4. Homeowner acknowledges that any improvement not in compliance with City codes or requirements will be reported to the City Building Code inspector.
5. There must be a separation from the party walls of the hardwood flooring.
Additional Conditions:
1. The flooring is required to utilize the highest sound insulation available
2. Upon sale or moving from the unit the bedroom/s must be re carpeted.
* California Building Code requires that all flooring meet an impact insulation class (IIC, specifically for impact type noises such as footfall, dropping things, etc...) of 45. While it is impossible to know unless the new flooring is tested appropriately, it is being suggested that the new flooring cannot possibly meet code with how much noise is being transmitted.
* The lower unit homeowner now states that the increased noise has rendered the unit untenable. They state that they are unable to sleep at night while the upper unit homeowners are awake and moving about, that they must wake up in the morning when their upstairs neighbors wake up due to the noise, also that the noise is so invasive and loud that their 1 year old son cannot sleep without being awakened. One example they gave was that the noise is now so loud that the noise can clearly be heard above a hairdryer being used. They also state that this will undoubtedly cause a significant drop in the value of their property.
* The lower unit homeowner contends that the HOA Board did not do their due diligence in the matter of the approval of the hardwood floors. The lower unit homeowners believe that the HOA Board should have been keenly aware of section 5.4 and what it's true meaning is.
* Furthermore, the lower unit homeowners believe that the HOA Board should have consulted the HOA's attorney to determine whether or not a doctor's note for allergies is sufficient reasoning by the law to exempt the upper unit homeowner's from a section of the CC&Rs.
* Furthermore, if a doctor's note for allergies is sufficient reasoning to allow an exemption of a section of the CC&Rs, the lower unit homeowners believe that the HOA Board should have consulted the HOA's attorney to determine whether the installation of hardwood floors above another homeowner's unit oversteps the law in regards to allowed exemptions due to the significant impact it can, and now has on the lower unit homeowner.
* Finally, assuming that the law allows for hardwood floor installation in spite of the CC&Rs for allergic reasons, then the lower unit homeowners believe that the HOA Board did not do their due diligence in providing specific guidelines for the installation of the hardwood floors and under the CC&Rs should have consulted an expert in the field of hardwood floor installation and soundproofing to create those guidelines since they were not already established.
There are probably some other minor facts I may have left out, but this is the majority of the situation at hand. Please feel free to ask any further questions and I can provide clarification.