Page 5 - Nevada Cooperator Expo March 2019

NEVADACOOPERATOR.COM
THE NEVADA COOPERATOR —
MARCH 2019
5
Legal
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QUESTIONS & ANSWERS
Flooring Issue
Q
I've lived in an upper fl oor condo
in a 14-year-old building for 10
years. Th e board is now making a
rule that we can only have hard fl ooring in
the kitchen, the bathrooms, and the laundry
room, and must install carpet or rugs on other
fl oor surfaces. I cannot fi nd in the condo's
governing documents where this was ever
addressed. Th ere are upper units that have in-
stalled hard fl ooring in the past 14 years. Does
the board own the fl ooring in my condo? Do
they have authority to make this rule?
—Distressed Resident
A
“While condominium docu-
ments vary as to the bound-
aries of the unit, fi nishes such
as fl ooring, wallpaper, and tile are generally
part of the unit and not part of the common
element,” says attorney Donna Zanetti of the
fi rm Leach Kern Gruchow Anderson Song,
which has offi ces in Reno and Las Vegas.
“Th erefore, it's very unlikely that association
owns the fi nished fl ooring in your unit.
“Hard fl ooring is beautiful and certainly
more durable and easier to keep clean than
carpet. However, sounds that are muffl ed by
carpet come through loud and clear with some
hard surface fl ooring, signifi cantly increasing
noise levels in the unit below. Noise levels can
be reduced with appropriate underlayment.
Th e International Building Code (IBC) ad-
opted by Nevada municipalities including
Washoe and Clark Counties sets standards
for sound transmission. Many newer condo-
miniums specifi cally include sound transmis-
sion or hard fl ooring restrictions to minimize
these noise nuisances. However, even older
condominiums lacking such a restriction
must address noise issues using the provisions
in their existing governing documents.
“So yes, the board likely does have the au-
thority to adopt a reasonable rule regarding not have a specifi c restriction on hard fl oor-
hard fl ooring. NRS 116.31065 requires that ing, most declarations include one or more of
the rules adopted by an association:
1. Must be reasonably related to the pur-
pose for which they are adopted.
2. Must be suffi ciently explicit in their ordinances. Any one of these provisions could owner’s right to reasonably use and enjoy
prohibition, direction or limitation to inform support a rule on hard fl ooring.
a person of any action or omission required
for compliance.
3. Must not be adopted to evade any ob-
ligation of the association.
4. Must be consistent with the govern-
ing documents of the association and must
not arbitrarily restrict conduct or require the
construction of any capital improvement by a
unit’s owner that is not required by the gov-
erning documents of the association.
5. Must be uniformly enforced under
the same or similar circumstances against all his or her property in an unreasonable way legitimate association interest. Your condo as-
units’ owners. Any rule that is not so uniform-
ly enforced may not be enforced against any son’s ability to use and enjoy their property. fl ooring in those areas where carpet would
unit’s owner.
6. May be enforced by the association style—but which would both support a rule (kitchens, bathrooms and laundry rooms) but
through the imposition of a fi ne only if the as-
sociation complies with the requirements set
forth in NRS 116.31031.
“Let’s look at two of these six elements
for rule adoption. First, 'a rule must be con-
sistent with the governing documents.' To be
consistent with the governing document, the
board could not adopt a rule contrary to the
governing documents, or which has no basis
in the governing documents. For example,
if the condo declaration allowed owners to
keep two pets, the board could not adopt a
rule prohibiting pets, because that would be
inconsistent with the governing documents.
Likewise, if the governing documents did not
require every owner to install a shed on their clude a provision that makes a failure to com-
lot, the board could not adopt a rule requiring ply with applicable laws and ordinances a vio-
an owner to make that expenditure because lation of the governing documents:
there is no basis in the governing documents
for it.
“While your governing documents may
the following: a covenant of quiet enjoyment,
a nuisance restriction, and/or a requirement
that owners comply with applicable laws and ing could substantially interfere with another
“A covenant of quiet enjoyment ensures opted the IBC's sound transmission standards
the owner's right to reasonably use his/her or other similar standards, then the noise gen-
unit without disturbance. A typical ‘quiet erated by hard fl ooring could constitute a vio-
enjoyment’ covenant might read as follows: lation of the law or ordinances.
'Nothing shall be done or maintained on any
part of a Unit which emits foul or obnoxious
odors outside the Unit or creates noise or other
conditions which tend to disturb the peace, qui-
et, safety, comfort, or serenity of the occupants
and invitees of other Units.'
“A nuisance occurs when one person uses it must have some rational relationship to a
that substantially interferes with another per-
Below are two examples—quite diff erent in be an unsanitary and inappropriate choice
to regulate excessive noise from hard fl ooring:
‘
No noxious or off ensive trade or activity
shall be carried on upon any Unit, or any part
of the Covered Property nor shall anything be
done thereon which may be, or may become an
annoyance or nuisance . . . or which shall in any
way interfere with the quiet enjoyment of each
of the Owners of his respective Unit, or which
shall in any way increase the rate of insurance.'
‘No Owner shall engage in any activity
which materially disturbs or destroys the veg-
etation, wildlife, or air quality within the Prop-
erties or which results in unreasonable levels of
sound or light pollution.'
“Finally, many governing documents in-
'No Use
Restriction or Rule shall interfere with the ac-
tivities carried on within the confi nes of Dwell-
ing Units, except that the Association may pro-
hibit activities . . . that create an unreasonable
source of annoyance, or that otherwise violate
local, state, or federal laws or regulations.'
“Excessive noise from hard surface fl oor-
their property. If your county or city has ad-
“Th e second element of NRS 116.31065 we
will look at is ‘a rule must be reasonably re-
lated to the purpose for which it is adopted.’ In
a nutshell, this means that the rule must target
the problem it is intended to address. It need
not be the perfect solution to the problem, but
sociation has adopted a rule that allows hard
restricts it in sleeping and living areas where
most owners expect reasonable quiet. A court
would likely conclude that this rule is reason-
ably related to its purpose of minimizing nui-
sance and ensuring quiet enjoyment.
“However, your board could consider
amending the rule to allow hard fl ooring in
bedrooms and living areas which meets appli-
cable noise standards. Such a rule may require
the installing owner to provide evidence that
the fl ooring and underlayment selected meets
the applicable standard as installed.”
n
Disclaimer: Th e answers provided in this Q&A
column are of a general nature and cannot
substitute for professional advice regarding your
specifi c circumstances. Always seek the advice of
competent legal counsel or other qualifi ed profes-
sionals with any questions you may have regard-
ing technical or legal issues.