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Condo | HOA Lawyers

Is Your Upstairs Neighbor Noisy? – Floor Covering Restrictions

Noise coming from adjacent units is a common problem. It can be caused by many things, including music, instruments, appliances, running, jumping, or a myriad of other causes.  Our advice has almost always been that if you have a rule, you need to enforce it uniformly against all.  However, with noise, it is often difficult to determine what is too loud and what is simply an over-sensitive neighbor.  To combat some of the noise issues, many associations require second floor and above units to have carpeted floors.  For those who want hardwood or tile, it is sometimes permitted provided the plans are pre-approved by the board.  These plans then often require soundproofing to be placed between the two floors.

In a 2017 case (Laguna Tropical, a Condominium Association, Inc. v. Barnave) a Florida Court at first glance seems to approve of the board’s selective enforcement of its rules.  The relevant facts of the case are that a unit owner replaced her carpeting with laminated flooring after getting an email from the president of the association stating that wood flooring was acceptable.  However, the unit owner never obtained the board’s approval in violation of the association declaration’s floor covering restriction.  The evidence also disclosed that the association only enforced the restriction against 11 of its 94 units.  When the association started a lawsuit to enforce its documents, the unit owner contested arguing “selective enforcement.”  The court ruled in the association’s favor.

The court found that the association had consistently enforced its rules based on noise complaints, and that those complaints only came from the 11 units with units above them. Therefore, there was not selective enforcement.  The court also held that the declaration and rules clearly provided that wood flooring had to be reviewed and approved by the board, and therefore the approval of a single officer, even if it was the president, was not sufficient.

Lessons:

  1. Courts are likely to strictly interpret your documents if you are looking to enforce them;
  2. Courts are likely to enforce noise restrictions in the documents if an association can show that it consistently responds to complaints, even when the association arguably only enforces against those units that have the issue; and
  3. Courts will look to your documents and the law as to who can approve and who cannot approve exceptions to any rule.

For more information on noise solutions or document enforcement issues, please contact an attorney that specializes in condominium law.

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