People who purchase a condominium unit that has another unit above it are liable to be concerned about the potential for noise coming from the upper unit. It is a legitimate concern and one that is not assuaged simply by being reassured that the current occupants of the upper unit are quiet and considerate. What about future owners? What if someone installs hardwood floors? You want to know if the association CC&Rs (Covenants, Conditions, and Restrictions) provide any protection from such a situation. If they do, the courts will enforce them.

In February of 2011, Ruben Munoz, an attorney, and his wife moved into an upper unit that was subject to the rules and regulations of the Ryland Mews Homeowners Association (HOA). Upon moving in, Munoz replaced the carpets with hardwood flooring to accommodate his wife's severe dust allergy. After the installation, the occupants of the unit below began to experience "noise transfer" through the floor. Prior to this time, they had never had any problems with sounds from above. But now, they said, the sounds were greatly amplified and had become intolerable. They turned to the association for help.

The HOA wrote to Mr. Munoz, notifying him that his alteration of the flooring appeared to have been made without prior approval of the HOA (as required by the CC&Rs). They asked for a copy of the approval documents, in the event the HOA records were not complete. Mr. Munoz did not respond within the thirty-day period he had been given. Next, the HOA wrote to Mr. Munoz requesting alternative dispute resolution, as provided for within the California Civil Code. Again, Mr. Munoz did not respond.

The association brought an action against Munoz seeking an injunction and declaratory relief. They sought a preliminary injunction "restraining and enjoining" Munoz from "maintaining hardwood flooring" and from violating other HOA restrictions. The hearing on the injunction took place in December of 2012. "The court confirmed with plaintiff [the HOA] that it was not demanding that defendant ‘tear up the floors,' but sought only a ‘proposal through a contractor' for a modification consistent with the HOA rules. Plaintiff added a request for an interim solution, that throw rugs be placed on 80 percent of the floors outside the kitchen and bath areas. The court found those suggestions reasonable and granted the request."

Munoz appealed and the matter went to California's Sixth Appellate District (Ryland Mews Homeowners Association v. Ruben Munoz).

In its ruling, the Appellate Court noted that the HOA was relying on portions of its 1993 "Declaration of Restrictions."

"Section 3.3 of that document provided, ‘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 occupants of any other Condominium.' Section 3.17 more specifically stated, ‘No Unit shall be altered in any manner that would increase sound transmission to any adjoining or other Unit, including, but not limited to, the replacement or modification of any flooring or floor covering that increases sound transmissions to any lower Unit.' And under section 7.2(v), prior written approval had to be obtained from the Architectural Review Committee before ‘any replacement or modification to any floor coverings or wall or ceiling materials or any penetration or other disturbance of any wall, floor, or ceiling, if the replacement, modification, penetration or disturbance could result in any increase in the sound transmissions from the Unit to any other Unit."

The Appellate Court also pointed out that, "the decision to grant a preliminary injunction rests in the sound discretion of the trial court" and that "the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion."

The Appellate Court found that there was no abuse of discretion by the trial court and there would be no reversal of the injunction.

Attorney Simon Offord, writing in The California Real Estate Law Newsletter, says this: "This decision gives homeowner's associations more confidence and another ‘sword' to curb violations of CC&Rs, notably seeking an injunction. This specific issue, installing hard floor surfacing contrary to HOA guidelines is incredibly common. This decision will surely lead to aggrieved homeowners or the associations themselves seeking injunctions immediately, rather than waiting for trial to remedy the noise issues."

To his observation I would add: It should also lead potentially affected HOAs and homeowners to verify that their CC&Rs have provisions, such as this one did, that they can rely on in case of a future problem.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.