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What are my chances of winning this case: Installed Hardwood floors that failed sound test?

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jacob2626

New member
What is the name of your state? ca

(Please answer if you are aquainted with hardwood flooring testing and ISR standards)

We got approval from HOA and downstairs neighbor to put hardwood flooring. We installed premium cork and rubber acoustic underlayment. The HOA and neighbor referred an acoustic engineering firm (listed on the CCR) to do a sound test. We got a 47 on the ISR. We require a 45 by CA standards, but the HOA CCR requires 52. BUT. the Engineer (who they referred) says the ISR testing is not an accurate form of testing with several proofs, despite it being the standard in the CCR. He says the HIR is the more accurate testing and that we passed by a lot and our flooring is very adequate. They are still moving forward with litigation. Do you think the judge will take the strict opinion and make us remove it based on those few ISR points or listen to the expert on the matter?

PS We of course have area rugs now as well.
 


adjusterjack

Senior Member
They are still moving forward with litigation.
What does that mean? Have you been served a summons and complaint?

Do you think the judge will take the strict opinion and make us remove it based on those few ISR points or listen to the expert on the matter?
No way to predict.

But if you have been served a summons and complaint hire a lawyer and make sure your expert comes to court to testify.
 

jacob2626

New member
What does that mean? Have you been served a summons and complaint?



No way to predict.

But if you have been served a summons and complaint hire a lawyer and make sure your expert comes to court to testify.

Yes served and responded. We are in litigation. No mediation. What are things the judge will look for and inquire. How will he be persuaded either way?
 

quincy

Senior Member
Yes served and responded. We are in litigation. No mediation. What are things the judge will look for and inquire. How will he be persuaded either way?
It could be a battle between experts in court. There is no way to know in advance what a judge will find persuasive.
 

festival

Member
Why are they suing you over this, since you passed a better standard? The board has the discretion to not sue. Are they mad at you for something else?

Your lawyer can challenge the reasonableness of the action, and then the board has a higher standard to overcome in court. So I have been told. Something to discuss with your attorney.

An owner usually has the option to follow the procedures in your bylaws to amend your governing documents to update to the better standard. It could be a lot cheaper than the lawsuit.
 

Zigner

Senior Member, Non-Attorney
Why are they suing you over this, since you passed a better standard? The board has the discretion to not sue. Are they mad at you for something else?

Your lawyer can challenge the reasonableness of the action, and then the board has a higher standard to overcome in court. So I have been told. Something to discuss with your attorney.

An owner usually has the option to follow the procedures in your bylaws to amend your governing documents to update to the better standard. It could be a lot cheaper than the lawsuit.
The board requires a certain certain certification. The flooring failed that certification. Whether or not it passes an entirely different certification is irrelevant.
 

festival

Member
I looked around the website of a CA law firm that specializes in the Davis Stirling Act. Not hard to find on the internet. In regard to a defense challenging "reasonableness" I found this:

"The criteria for testing the reasonableness of an exercise of such a power by an owners' association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner." (Laguna Royale Owners Assn. v. Darger

The engineer's test and testimony that "the ISR testing is not an accurate form of testing with several proofs" seams like a very good challenge to the reasonableness of the CC&R.
 

not2cleverRed

Obvious Observer
I looked around the website of a CA law firm that specializes in the Davis Stirling Act. Not hard to find on the internet. In regard to a defense challenging "reasonableness" I found this:

"The criteria for testing the reasonableness of an exercise of such a power by an owners' association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner." (Laguna Royale Owners Assn. v. Darger

The engineer's test and testimony that "the ISR testing is not an accurate form of testing with several proofs" seams like a very good challenge to the reasonableness of the CC&R.
Well, as CA law uses ISR, and the HOA could very easily have their own expert...

Here's the thing: OP voluntarily lives in a place with an HOA, governed by CCRs. The bylaws existed before the work was done, and the work is not in compliance with the HOA requirements. So, OP is in violations of the CCRs, and yes, the judge can go strictly by that.

More compelling would be if the neighbor downstairs, who is directly affected by this, were saying, "I don't know what all the fuss is about, because it's actually been way quieter with the new floors." Apparently the neighbor downstairs has not been effusive in their delight with the soundproofing of the new floor.
 

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