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Statute of limitations - when does the clock start?

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AL ROQUE

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

Our CC&R states this: 5.4 ALTERATIONS TO UNITS: Owners may alter or remodel the interiors of their Units, including Common Area physically contained within the Unit (excluding load bearing walls), if the alterations do not impair the structural integrity of the Unit or of the building containing the Unit and if the Owner complies with all laws and ordinances regarding alterations and remodeling. No alteration of the 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.

In 2002, before moving in, I replaced the carpet of my condo to laminate with quiet padding underlay. I asked the property manager that time for authorization. No written approval was provided; it was all verbal.

Fast forward to 2018 and we have a new property management who's forcing upper condo units(like mine) to replace non-carpeted floors to carpet ONLY and based on CC&R section 5.4 above.

Shouldn't I be "grandfathered" since I replaced mine in 2002 with "verbal" authorization from the property manager during that time?

If they force me to replace my floor to carpet and I refuse, do I have a case? They have already forced other owners of upper units to comply.

The CC&R used "soft floor" terminology.. does laminate flooring qualify as soft flooring?

Please advise and thank you in advance.
 


HRZ

Senior Member
From an engineering standpoint the underpadding might provide the level of noise attenuation provided by some thin soft.floor coverings ....but as posted that's not a winning point.

I think other parts of the CC&R likely address approval process, and your point that you proceeded in detrimental reliance on the verbal approval of a manager with authority or apparent authority is going to hit some rocks .
..unless you can find language in your CCR which allow for such approval

IT might be reasonable to expect an approved list of soft floor coverings , but don't hold your breath .

AS worded you could cover any existing non compliant flooring with any area requiring soft cover with a thin soft cover that covers that entire area ? ( Assuming the combination did not increase sound transmission over the original floor.)

UNless you happen to have free access to a lot of legal talent and engineering talent , I think this is one debate with poor odds to win
 

adjusterjack

Senior Member
The CC&R used "soft floor" terminology
Amusing.

You put the words "soft floor" in quotes but that not what the CC&Rs say.

The CC&Rs say

"soft-cover floors"
Laminate flooring is not a "soft-cover floor."

If the CC&Rs require written approval or an approval process other than an oral conversation and you didn't follow the process I don't see you winning on the issue.
 

festival

Member
Talk to you board of directors.

Your property is run by a board of directors that is composed of your fellow owners. The board makes the decisions, not the property management. Your arguments are good, and you should talk to board members to find out why this going on now, and take your arguments to the board at their next meeting, or if they call you to a hearing.

Remind the board of the verbal approval, the quiet padding underlay and that the statute of limitations has expired on a 16 year installation. Do some research on your flooring padding and get a statement from your downstairs owner.

Your legal defenses may involve: statute of limitations, which is five years from the time the board discovers the violation or, through the exercise of reasonable diligence, should have discovered the violation. ( Code Civ. Proc. §336(b); Pacific Hills HOA v. Prun.), laches, estoppel, waiver, reasonableness. I'm not a lawyer, so those defenses may or may not get you anywhere, but you can bring them up to the board.

Let us know how it goes.
 

AL ROQUE

Junior Member
STATUTE OF LIMITATIONS. When does it start?

If I use the statute of limitation defense - Does the 5 year start on 2002 when I did the flooring change with the former property management giving me only "verbal" approval or does the 5 year starts now when the new property manager had discover that I have violated the flooring CC&R clause?
 

justalayman

Senior Member
The statutes of limitations do not apply. There is a deficiency. The coa can require the deficiency be remedied upon discovery of the deficiency.
 

LdiJ

Senior Member
The statutes of limitations do not apply. There is a deficiency. The coa can require the deficiency be remedied upon discovery of the deficiency.
Everybody, including the HOA is assuming a deficiency. However, unless someone is actually familiar with "quiet padding underlay" I do not think that a deficiency can be assumed.

I did go an read a little bit about it, and it seems even better than carpeting for reducing sound. Its kind of like acoustical tiles.

OP, have you had any complaints at all from your neighbors in the last 16 years? If not, providing information about the quiet padding underlay and pointing out the fact that there have been no complaints might be the way to go.
 

justalayman

Senior Member
Everybody, including the HOA is assuming a deficiency. However, unless someone is actually familiar with "quiet padding underlay" I do not think that a deficiency can be assumed.

I did go an read a little bit about it, and it seems even better than carpeting for reducing sound. Its kind of like acoustical tiles.

OP, have you had any complaints at all from your neighbors in the last 16 years? If not, providing information about the quiet padding underlay and pointing out the fact that there have been no complaints might be the way to go.
I think you should go back and read the actual verbiage of the rules. If the flooring does not comply with the written rules, there is a deficiency, even if the current installation is quieter than that required by the rules.
 

LdiJ

Senior Member
I think you should go back and read the actual verbiage of the rules. If the flooring does not comply with the written rules, there is a deficiency, even if the current installation is quieter than that required by the rules.
I would make the argument that when the CC&Rs were written there was no affordable technology that was better for soundproofing between floors than soft cover and that OP has used newer technology to do something better once it became available. I would argue that the CC&Rs are out of step with technology.
 

justalayman

Senior Member
I would make the argument that when the CC&Rs were written there was no affordable technology that was better for soundproofing between floors than soft cover and that OP has used newer technology to do something better once it became available. I would argue that the CC&Rs are out of step with technology.
It doesn’t matter. The rules demand soft-cover floors with the exception of hard flooring being allowed in certain specific areas if they were originally constructed that way and it was declared as such.

I get your point but at best it’s an argument the op can try to allow the existing floor to remain. By the rules the floor in place now is simply not allowed. The board has the right to enforce the rules as written.


Btw: hard cover floors do create more sound because the contacted surface is rigid. While sound attenuation padding can be used to limit the transfer of that greater level of sound, it will not defeat it entirely. The sharpness of the sound can be muffled but it won’t be defeated entirely. With a soft cover floor, the initial sound itself is very different than that created with a hard floor.


Your argument would be the basis for a change in the rules but it isn’t an argument for an exception to the rules
 

LdiJ

Senior Member
It doesn’t matter. The rules demand soft-cover floors with the exception of hard flooring being allowed in certain specific areas if they were originally constructed that way and it was declared as such.

I get your point but at best it’s an argument the op can try to allow the existing floor to remain
. By the rules the floor in place now is simply not allowed. The board has the right to enforce the rules as written.
Isn't that what I said? Demonstrate that the rules are antiquated, technology wise so that they will let the flooring stay?
 

adjusterjack

Senior Member
The statutes of limitations do not apply. There is a deficiency. The coa can require the deficiency be remedied upon discovery of the deficiency.
The SOL does apply. It starts running from when the violation of the restriction is discovered (which is now) and the HOA has five years to file a lawsuit if necessary.

That's actually explained in the case decision that Festival posted where suit was brought 4 years after the violation was discovered.

https://scholar.google.com/scholar_case?case=7497609664049939891&q=pacific+hills+homeowners+association+v+prun&hl=en&as_sdt=4,5

The court also made short work of the other defenses mentioned by Festival.
 

justalayman

Senior Member
Isn't that what I said? Demonstrate that the rules are antiquated, technology wise so that they will let the flooring stay?
That isn’t what I said. I said the rules as written are enforceable.

Op can seek an exemption if the construct as installed provides for no more sound transmission than an acceptable construct but it does not defeat the rules as written.

The argument regarding current tech v antiquated tech is a valid argument for changing the rules but not for allowing an exception.
 

justalayman

Senior Member
The SOL does apply. It starts running from when the violation of the restriction is discovered (which is now) and the HOA has five years to file a lawsuit if necessary.

That's actually explained in the case decision that Festival posted where suit was brought 4 years after the violation was discovered.

https://scholar.google.com/scholar_case?case=7497609664049939891&q=pacific+hills+homeowners+association+v+prun&hl=en&as_sdt=4,5

The court also made short work of the other defenses mentioned by Festival.
Fair enough.

While I still don’t agree with the reasoning, it’s what that court said.
 

LdiJ

Senior Member
That isn’t what I said. I said the rules as written are enforceable.

Op can seek an exemption if the construct as installed provides for no more sound transmission than an acceptable construct but it does not defeat the rules as written.

The argument regarding current tech v antiquated tech is a valid argument for changing the rules but not for allowing an exception
.
Why not? I can image an HOA board allowing an exception if its proven to them that the technology is even better than soft cover. They certainly have the right to do so.
 

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