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Exemptions from CC&Rs for Medical Reasons

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MrBeanz

Junior Member
What is the name of your state (only U.S. law)? CA

I am trying to find out what rights the HOA Board has in regards to making decisions that directly violate sections of our governing documents when it comes to matters of a fairly minor and common medical nature, such as allergies. Bear in mind, I am NOT talking about a disability.

I have found that all Condominiums are governed by the Davis-Sterling Act in California, along with any stricter guidelines set forth by our own governing documents.

As far as our governing documents are concerned, I have found nothing stating that the Board or the Architectural committee has any right to exempt a homeowner from any of the sections of our governing documents.

However, the Davis-Sterling Act DOES provide for the HOA Board to grant exemptions/waivers for DISABILITY reasons with being disabled as defined as blind, visually handicapped, deaf, or physically disabled. Civil Code §1360(a)2. While I suffer from allergies myself, I would never attempt to claim that my allergies render me disabled.

So with these facts in mind, what right does the HOA Board and/or Architectural committee have to allow a homeowner an exemption/waiver from a section of the CC&Rs in light of a medical condition such as allergies, especially if the exemption/waiver would have a significantly negative impact on one or more other homeowners?

I appreciate any and all feedback you can provide on the subject.
 


tranquility

Senior Member
What is being requested? What does the board want to do? What is the specific portion of the CC&R which is violated? What do the CC&Rs list as the power of the board?

Give the facts.
 

MrBeanz

Junior Member
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.
 
Last edited:

tranquility

Senior Member
It sounds like the board can make changes of this type to me under their powers. A key part was dismissed with your opinion and the case law on the matter may be different. It is very facts sensitive as to the goals of CC&Rs and it is litigation which is sure to get to a jury. (Read long and expensive.) You would not sue the owner, but the board. So, they will get to use condo money in defense and you get to use your's in prosecution. Because there are complexities in what torts/breaches of fiduciary duties may or may not have happened, you may be able to include the employee of the management company who gave legal advice and he may not be able to use your money to defend himself.

This is going to be a long and hard struggle once the board approved. (Was it a full approval or conditonal?) However, you have enough of a logical argument that it would be worth your while to see an experienced property attorney. There may be some provision in the CC&Rs saying the loser in any litigation pays the attorney fees of the winner.

The problem is, (I'm assuming you are the one adversely affected by the noise.) you have a difficult measure of damages and it is very unlikely to result in the change of approved plans if they have already happened. If not, you may be able to get an preliminary injunction to not make the changes, but you would need an attorney to do so. It is near impossible to overturn decisions which have been made through the HOA's due process. It seems like while there are muddied processes here, they may be defensible.

The end result is that I agree you should be angry and have a great argument which I feel should win out, seeing the process happen before makes me think you will not. Sorry. But, see an attorney first. Maybe an hour of give and take may put some twists into the mix which could mitigate your damages.
 

MrBeanz

Junior Member
Thank you again for your length response Tranquility.

Ultimately, I go back to my original question when I started this thread. Did the Architectural Committee have the legal authority to approve a change that clearly violates a section of the CC&Rs for medical reasons that are not defined as a disability?

My reason for focusing on this specific point is because I would believe that if they did not have the authority to make such an approval based on allergies (which is not a disability), then would that not render this approval unlawful and subject to be reversed?

Not only that, but what right does the Architectural Committee have to approve a change that clearly benefits one homeowner (hardwood floors generally increase property values) which in turn would have such a profound negative impact on another homeowner (significantly increased footfall noise certainly decrease property values)? I just can't imagine such an approval could ever be justified under the scrutiny of a court.

I have scanned our CC&Rs multiple times, and any reference to medical or disability reasons for accommodations are not defined in our governing documents.

However, there are obviously overarching laws (California's Davis-Stirling Common Interest Development Act) that grant (actually, prevent denial without good cause to) the Architectural Committee the ability to accommodate the disabled and for good reason of course.

Here is the civil code that directly relates in CA for DISABLED, which I would argue is not what allergies fall under as it is defined in Civil Code §1360(a)2.

Civil Code §1360. Modification of Unit for Handicap Access

(a) Subject to the provisions of the governing documents and other applicable provisions of law, if the boundaries of the separate interest are contained within a building, the owner of the separate interest may do the following:

(1) Make any improvements or alterations within the boundaries of his or her separate interest that do not impair the structural integrity or mechanical systems or lessen the support of any portions of the common interest development.

(2) Modify a unit in a condominium project, at the owner's expense, to facilitate access for persons who are blind, visually handicapped, deaf, or physically disabled, or to alter conditions which could be hazardous to these persons. (THIS IS NOT ALLERGIES!) These modifications may also include modifications of the route from the public way to the door of the unit for the purposes of this paragraph if the unit is on the ground floor or already accessible by an existing ramp or elevator. The right granted by this paragraph is subject to the following conditions:

(A) The modifications shall be consistent with applicable building code requirements.

(B) The modifications shall be consistent with the intent of otherwise applicable provisions of the governing documents pertaining to safety or aesthetics.

(C) Modifications external to the dwelling shall not prevent reasonable passage by other residents, and shall be removed by the owner when the unit is no longer occupied by persons requiring those modifications who are blind, visually handicapped, deaf, or physically disabled.

(D) Any owner who intends to modify a unit pursuant to this paragraph shall submit his or her plans and specifications to the association of the condominium project for review to determine whether the modifications will comply with the provisions of this paragraph. The association shall not deny approval of the proposed modifications under this paragraph without good cause.

(b) Any change in the exterior appearance of a separate interest shall be in accordance with the governing documents and applicable provisions of law.

Yes, unfortunately, the hardwood floors have been installed 2 months ago today actually.

You asked about whether the approval was a full approval or conditional. I'm not sure what you mean, but I can at least give you the entire approval that was sent from the Architectural Committee to the homeowners.

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.

Logically, I would say this was a conditional approval in that the installation must meet these conditions. Although you may have a different "legal" definition of a conditional approval that I don't understand.

Thanks again for your insightful feedback and advice. I greatly appreciate your thoughts on the matter.
 

tranquility

Senior Member
OP wrote:
Ultimately, I go back to my original question when I started this thread. Did the Architectural Committee have the legal authority to approve a change that clearly violates a section of the CC&Rs for medical reasons that are not defined as a disability?
I wrote:
It sounds like the board can make changes of this type to me under their powers.
The reason why (emphasis mine):
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.
That there is an argument regarding the purpose and intent of the CC&R's is the issue. The OP wants to focus on the tree of:
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.
Where I belive the focus should be on the forest of reasonable accomodation. I believe the HOA can, under their powers, do just about anything--as long as due process is followed. The only way to fight that is through the same due process and, then, court. Practically speaking, this will be a facts argument and not a legal one. Those are expensive and the person bringing suit will have to pay his attorney while the defendant(s) will use HOA money. This mismatch is one reason HOA's are so powerful.
 

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