What Do Hardwood Floors, Barking Dogs, And Wind Chimes Have In Common?

Answer: They can all drive you crazy.

Seriously, all of these can become an egregious nuisance and can cause a rise in blood pressure, destroy marketability of a unit, prevent neighbors from being able to enjoy their homes, drive a person to drink or into a depression, and possibly even cause someone to have a heart attack. If not checked, these kind of issues could also lead to criminal activity. If the wrong person gets mad enough, it could lead to injury or worse.

Yes, it’s true. In a 2005 article appearing on WEB MD, some German doctors wrote in the European Heart Journal, “Chronic noise burden is associated with the risk of heart attack.” The article was talking a lot about the noise of an urban environment and the stress on the heart.

The doctors researched what a toll a steady stream of noise at home or at work, such as the din of traffic, the clatter of construction, or the hustle and bustle of a big, busy office could do to a person. Multiply that by 10 for a direct noise nuisance and you can imagine the worst.

When someone lives below hard surface floors in a stacked condo, especially an apartment conversion, the noise is often amplified, which makes every sound worse. Barking dogs are unreasonably offensive. And wind chimes blowing erratically in the wind can be extremely annoying as well. I recently bought a wonderful sounding set of chimes for a friend who had mentioned she would like to have some. I hung them on the clothes’ hook in the back seat of my SUV because I didn’t want to lay them on the car seat and have them get tangled up. I drove around for one day and had to take them down the constant tinkling agitated me. On an earlier occasion I had to tie up a set of larger chimes I had in my back yard, which were more than 40 feet from the house, hanging in a tree. I had a large back yard so I wasn’t concerned about the neighbors, but I literally had to get up in the middle of the night when it was storming and the wind was blowing because the noise was incredible and ear plugs were not helping.

I have talked to many owners over the years who are in the fights of their lives over noise issues. I have advised boards when two owners are fighting over noise issues. And I have suffered frustration right along with parents who paid developers extra money for the “upgrade” to hard surface flooring and ended up being threatened by the downstairs neighbor who could not stand normal children noise usually someone who works at home and wants it quiet all day.

Many people’s lives have been turned upside down because of noise. One man had to move into his guest bedroom because the neighbors shut their three dogs in the bedroom across the wall from the master bedroom and he had to listen to the dogs romp, jump, play and growl all night long. The owner of the dogs did not care.

There may be some light in the tunnel because of a brand new case in California. For years I’ve watched for guidance in “unpublished cases” where noise issues of all varieties are addressed including loud boilers, partiers, and barking dogs, and can gather from these cases that the superior court and appellate judges sometimes get it about the noise nuisance but for some reason find the opinions not suitable for publishing. When an appellate decision is published, it becomes binding law that one can use to support a case. Unpublished decisions provide an indication of what the judges are thinking, but specifically arenot useful to support a case. Many of the unpublished cases involve procedural issues only without much guidance on the particular issue of noise.

The case is RYLAND MEWS HOMEOWNERS ASSOCIATION v. RUBEN MUNOZ, Santa Clara County, decided January 29, 2015 and approved for publishing February 20, 2015.

In the case the court said the owner of the unit with a hard surface floors had to take affirmative steps to address the noise transmission in time between a preliminary injunction and the trial on the permanent injunction. These kinds of orders are not issued unless the judges believe the plaintiff (the association in this case) will prevail at trial. The order required the defendant owner to place covering over 80% of the hard surface floors with rugs to dampen the noise, and determined that the plaintiff would probably prevail in the long-term with regard to forcing the owner to modify the flooring to conform to the governing document standards for sound transmission.

The defendant in this case wasn’t the owner who modified the floors; he had purchased the unit with the hard surface flooring in place and claimed it was necessary because of his wife’s allergies. He was upset with the court’s decision and fought it, but lost. The important point of this case, in my opinion, is that the court focused some attention on the fact that a person who continues to argue they need or deserve to keep hard surface flooring at the expense of the neighbor below doesn’t deserve to win.

Arguing allergies didn’t help them. This is something owners often argue – that because of allergies they can remove carpeting and padding and put in hardwood floors, no matter what the CC&Rs; say. I have long taken the position that even with allergies, there are floor covering products with non-allergenic qualities that would provide sound deadening matting over hard surface floors. But owners using allergies as the basis for violating the documents often don’t want to even try and compromise, and some even buy condos when they know beforehand that hardwood floors are prohibited, but assume they are privileged to ignore the CC&Rs; because they have allergies.

At any rate, this case helps. It tells us that if the governing documents require sound reducing modifications when carpet and padding is removed or flooring is altered, then an owner has to comply.

I don’t think the case goes far enough necessarily but in my opinion it presents a “foot in the door” to reasonable consideration of noise issues by the courts. I still believe that if owners whose lives are seriously adversely affected by the existence of loud floors have a reasonable shot at getting a judge’s sympathy in small claims court if the person wants to file a lawsuit there for noise nuisance. There is usually a clause in the CC&Rs; that prohibits nuisances that affect the “quiet enjoyment” (which really just means enjoyment) of a person’s home.

In the case, the court did take note of the particular CC&Rs; section prohibiting nuisances which said: “No activity shall be conducted in any unit or common area that constitutes a nuisance or unreasonably interferes with the use or quiet enjoyment of the condominium.” Another section in the documents said: “No unit shall be altered in any manner that would increase sound transmission to any adjoining units including, but not limited to, the replacement or modification of floor covering that increases sound transmissions to any lower unit.” The documents went on to require prior written approval from the architectural committee before any modification that caused an increase in sound transmission or a disturbance or annoyance to another unit. These are very common provisions in CC&Rs.; And owners are entitled to enforce the nuisance provisions.

But this case won’t end the problems for everyone. Just the other day, I was working with a board in the process of updating the governing documents and trying to settle on noise transmission and flooring installation language at the board’s request (as opposed to keeping prohibitions in the original documents), trying to help them understand the truth is that noise fights are common where hard surface floors is allowed in upstairs units. In my world, a clear prohibition on hard surface flooring on upper units in a stacked condominium is easier to enforce than a provision that leaves the door open to arguments over how much noise transmission is allowed. But I often find the board members want to install (or have already installed) wood flooring and want the new documents to resolve any outstanding issues. It sounds like a great sales pitch – it will increase the value of your unit! That may be true, unless you are one of the unfortunates who ends up in a raging legal battle over noise issues.

Leaving the door open to argument can “wear down” architectural committee personnel and board members and when that happens, it makes it even more difficult for an owner whose unit has become unmarketable to do anything about it. Rugs over wood floors do not tend to deaden sound, unless there is adequate padding underneath, and the upstairs owners walk on them instead of the floors.

With regard to any statutes of limitations, even if someone has gained the right to keep their floors because of board permission or the passage of time, a bona fide ongoing nuisance may be legally actionable.

Nuisance is a factor that cannot be discounted or canceled out by claim of allergies, a claim of passage of time or an air of entitlement. Even if there is not a nuisance for years because the upstairs neighbors are quiet or gone alot,circumstances can change that will create a nuisance.

Noise can come from not only from hard surface flooring, but also from barking dogs, wind chimes, back yard hot tubs, old boilers, parking garage gates, or elevators in desperate need of repair. In any extraordinary or offensive noise situation there may be a viable legal claim.

While the Ryland case won’t resolve all flooring/noise issues, it does offer some hope.

If you have difficult neighbors and are looking for some help, there is a Primer on my website that is helpful in dealing with difficult people and there are some solutions for dealing with neighbor to neighbor issues. And if the board is not doing a reasonable job of enforcing the nuisance prohibitions in your governing documents, some pressure in the right places might help. I do consultations with boards and with owners in situations involving noise. Here is a case to take with you to small claims court if your neighbor noise is intolerable.

Just don’t get the idea that if you hate kid noise and want to complain about daytime noise, you may run into some fair housing issues, so “tread lightly”.

The 2015 Davis-Stirling Act is available now along with the Primers in the Webstore, in PDF or snail mail format. Don’t be confused about the law!

Lots of resources are available including articles, blogs, E-news archives, Primers and Guides, and other publication like books, on all subjects at www.californiacondoguru.com.

Check out the SPECIAL link to the 2014 Reorganized Davis Stirling Act here. You will find lots of resources when you click on it.

And perhaps best of all – at least for small associations – look forward to my book coming out in January –The Ultimate Small HOA Survival Guide.