HOA Law Blog
As many condominium association boards know, hard surface flooring is a popular trend and homeowner demands for its installation are increasing. Benefits of hard surface flooring include its hypoallergenic properties and its durability, and some homeowners simply prefer its aesthetics. In view of this, associations need to consider the following important factors when dealing with hard surface flooring requests or issues.
1. What Do the Governing Documents State? First and foremost, association boards need to review and be familiar with their CC&Rs provisions related to hard surface flooring. Review the architectural section to determine whether hard surface flooring is even subject to architectural review and approval. For example, some CC&Rs allow an owner to install improvements such as hard surface flooring inside the airspace of a unit as long as the common area structural components are unaffected. If the CC&Rs do not subject hard surface flooring to architectural review, then an owner may proceed with installation (subject to the provision referenced in Item 3, Nuisance, below*). Associations should also review the prohibited use section of the CC&Rs. Sometimes this section prohibits hard surface flooring entirely and sometimes only in certain circumstances (e.g., it is permitted for homes located on the first floor but not for upper floors of a building). The rules and regulations of an association should be consistent with the authority granted by the CC&Rs. If the CC&Rs do not enable an association to regulate hard surface flooring, then it can only do so through the enforcement of a nuisance provision (see Item 3, Nuisance, below*). An association may be successfully challenged in court if it imposes standards beyond the authority granted by the CC&Rs.
2. Establish Consistent Flooring Standards. Putting members on notice of hard surface flooring standards is key to minimizing future architectural and nuisance disputes. Such standards allow owners to plan ahead and avoid costly mistakes. This also allows the association to act consistently and avoid claims of selective enforcement or special treatment in regard to architectural applications or owner violations. These standards should be in either the CC&Rs of an association or its rules and regulations, such as the architectural guidelines section.
If the CC&Rs establish tangible hard surface flooring standards, such as noise decibel limits or required placement of rugs or carpeting in certain rooms, then of course those standards should be followed. However, associations that plan to amend their CC&Rs to add or modify hard surface flooring standards must be mindful of the process and the difficulty of changing the standards in the future. Amendments to the CC&Rs require a secret ballot vote and typically more than 50% of the membership’s approval (subject to specific requirements in the governing documents). Other CC&Rs may contain language that gives the association authority to adopt architectural guidelines concerning hard surface flooring. This provides associations with the flexibility to adopt and change standards by a majority vote of the board rather than by the secret ballot membership voting process. In addition, owners are able to provide comments regarding the hard surface flooring guidelines before the guidelines are adopted. In the absence of explicit hard surface flooring provisions in the governing documents, the architectural review process may provide associations with the opportunity to conditionally approve an owner’s hard surface flooring application subject to certain flooring conditions. This method does have potential pitfalls; an owner may not know of the conditions until all the work has gone into preparing and submitting the application, and an association is more likely to be inconsistent in applying these conditions across multiple applications.
3. Nuisance.* Even if the governing documents do not regulate hard surface flooring, most CC&Rs contain a nuisance provision. If an owner’s hard surface flooring is causing a nuisance to other nearby owners because of how the flooring transmits noise (such as walking or talking), then the association will likely have to investigate and enforce the nuisance provision to the extent consistent with its enforcement and fine policy.
4. Grandfathering. Associations need to be aware of possible grandfathering issues in which current owners received prior association approval or complied with the existing governing documents for hard surface flooring installation but without board approval. In some rare instances, an association may require an owner to alter or modify existing hard surface flooring because of new circumstances. On the other hand, associations should be prepared to handle instances where a new owner purchases a home with unapproved hard surface flooring already installed. It is uncommon for associations to inspect a home prior to its sale, so the association is unlikely to know of any hard surface flooring in violation of the governing documents.
5. Reasonable accommodation. If an association prohibits hard surface flooring, some owners may request hard surface flooring as a reasonable accommodation under federal and state fair housing laws. Some of these owners may claim they have carpet allergies, but this does not mean hard surface flooring must be allowed. In cases where an association encounters a reasonable accommodation request, it would be prudent to consult legal counsel, because reasonable accommodation issues need to be carefully navigated or an association can be subject to costly fair housing claims and lawsuits.
This article is intended to provide a general overview of hard surface flooring considerations. Associations are encouraged to further consult with their managers, construction professionals, and legal counsel.