Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #52 • September 2010
Upstairs, Downstairs
Strategies for Dealing with Noise Disputes
by Paul W. Windust, Esq.
Noise disputes among owners can be one of the most troublesome problems community associations and their managers face. Not only can they be expensive to resolve, they can cause community unrest and bad feelings. However, if a community association acts quickly and assertively, it may be able to diffuse the dispute, or at least keep the association out of court.
Noise issues often involve a downstairs owner's complaints of noise coming from the unit above. This frequently involves floor coverings, or the lack of them. The typical dispute has a common set of facts. An upstairs unit owner decides to upgrade by removing existing carpeting and installing hardwood or some other hard-surface flooring in its place. This upgrade occurs without application or notice to the architectural control committee. The first time the board becomes aware of the problem is when a complaint is made by the owner of the unit below. The usual complaints include increased noise from the upper unit--walking, voices, music, or television sounds.
Not all noise complaints relate to floor coverings. Some buildings lack sufficient soundproofing between adjacent units allowing greater than normal sound transmission. Floor structures can lack sufficient rigidity, causing them to “creak” or “groan” when walked on. But the vast majority of such claims come from a downstairs unit owner reporting elevated noise levels after an upgrade to hard-surface floors. Floor coverings are part of a unit owner's separate interest. They are not common area and the association will not usually have direct responsibility for their performance as it would with a defective structural element, for example. However, the governing documents may include floor covering provisions as part of the architectural guidelines that the association is charged to enforce. Also, the association can be responsible under the governing documents for abating a “nuisance” regardless of whether the nuisance involves a separate or common interest.
CC&R provisions relating to noise transmission. Here are four typical provisions found in community association governing documents. The first one prohibits hard-surface floors unless approved by the Architectural Control Committee and any change must provide sound insulation equivalent to the original carpet and padding.
Berding|Weil Q&A of the Day
By Gabriel P. Rothman, Esq.
My community association has been trying to convince the developer to repair construction defects at my condominium complex for months, but the developer has refused to address them. We have been considering suing him, but we recently found out that he has now declared bankruptcy. Are we now out of luck?
The answer to this question can be complex and can require the assistance of counsel experienced in construction claims. That being said, the short answer is no, not necessarily. First, many developers and subcontractors carry commercial general liability insurance policies that cover their defective construction. It is very likely that the company or individual that developed your condominium complex had exactly this type of insurance. Moreover, any subcontractors that were hired by the developer most likely also had commercial general liability insurance as well. Your attorney should be able to assist you in pursuing claims against any insurance companies that insured the developer and/or the subcontractors that built your condominium complex.

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