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posted: 6/8/2013 5:40 AM

Dealing with offensive noise

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Q. An owner in our association installed hardwood floors where there used to be carpet. The downstairs neighbor of ten years now complains he hears every footstep from the upstairs unit. We think the owner glued the hardwood floor directly to the concrete subfloor.

The association's governing documents do not prohibit hardwood floors, and we don't have any rules concerning underlayment. Can the board do anything about this issue?

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A. The absence of a covenant that prohibits hardwood floors, or any rule that addresses underlayment, makes this less than an easy situation to resolve. There may, however, be a remedy if there is language in the association's declaration that prohibits an owner from engaging in noxious or offensive conduct, or conduct that is an annoyance to other residents.

In order to proceed along this line, the board should have some objective evidence that the noise generated in the unit with the hardwood floors exceeds generally accepted levels. This will assist the board in determining if there is a violation of the covenants, or whether the complaining owner is reacting to the natural difference between floor surfaces.

To this end, some associations require a complaining owner to provide this evidence. That is, some associations require the complaining owner, in a unit-to-unit noise dispute, to hire a sound engineer to take decibel readings in the unit. The engineer then issues a report as to whether the noise levels are within or exceed standards. The theory is that the association is not an investigative body, and should act based on objective data rather than on a subjective complaint of an owner.

Some associations will enter into an arrangement with the complaining owner. The agreement provides that the association will hire the sound engineer. If the sound levels are within acceptable levels, the complaining owner pays for the sound engineer; if the sound exceeds acceptable levels, the association pays for the sound engineer and pursues the owner generating the noise.

If the noise levels exceed accepted standards, the association could issue a notice of violation to the owner and provide an opportunity for a hearing, based on the language in the declaration discussed above. After the hearing, the board could levy a fine, and/or require the owner with the wood floor to take action to reduce the unacceptable sound transmission between units. This action can include requiring throw rugs in specified locations, or removal of the floor in severe situations and installation of carpet, or installation of appropriate underlayment.

The association would be well served to draft rules addressing the type of underlayment that must be installed under hardwood floors. There are products that greatly diminish, if not eliminate, unit-to-unit sound transmission.

Q. I am a unit owner in an association. I called the association's attorney to ask a question about an association issue. The attorney told me he could not speak to me without the prior authorization of the board. My assessments pay the attorney's fees. Shouldn't he have talked to me?

A. No; the attorney responded correctly, and should not speak with you unless authorized by the board. The attorney represents the association through its board of directors. The association's attorney does not represent the owners, whose interests can be adverse to the interest of the association.

The standard protocol in the industry is for the association's attorney to communicate with, and accept instructions from, a single board member and the property manager, if any. The board president, unless the board appoints a different person, is typically the default point of contact. Further, the board should be made aware of this protocol, and that the attorney will rely on the information communicated from person serving as the liaison.

To take this one step further, the association's attorney shouldn't really speak with any board member other than the liaison. This is essential to avoid misunderstanding as to the board's instructions and unnecessary attorney's fees that arise from communications with multiple board members.

Q. I recently learned the board president of our association executed an amendment to an existing management contract without board approval. The amendment increased the fee to the management company. What's the board president's exposure to liability here?

A. Unless the board properly authorized the president to take this action, the board member's action was beyond the scope of his authority. The board member who took action beyond the scope of his authority is potentially liable for the increased fee payable to the management company. The board, if it is so inclined, could ratify the action of the board member at a duly called and held meeting of the board.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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