Q. I've lived in an upper floor condo in a 14-year-old building for 10 years. The board is now making a rule that we can only have hard flooring in the kitchen, the bathrooms, and the laundry room, and must install carpet or rugs on other floor surfaces. I cannot find in the condo's governing documents where this was ever addressed. There are upper units that have installed hard flooring in the past 14 years. Does the board own the flooring in my condo? Do they have authority to make this rule?
A. “While condominium documents vary as to the boundaries of the unit, finishes such as flooring, wallpaper, and tile are generally part of the unit and not part of the common element,” says attorney Donna Zanetti of the firm Leach Kern Gruchow Anderson Song, which has offices in Reno and Las Vegas. “Therefore, it's very unlikely that association owns the finished flooring in your unit.
“Hard flooring is beautiful and certainly more durable and easier to keep clean than carpet. However, sounds that are muffled by carpet come through loud and clear with some hard surface flooring, significantly increasing noise levels in the unit below. Noise levels can be reduced with appropriate underlayment. The International Building Code (IBC) adopted by Nevada municipalities including Washoe and Clark Counties sets standards for sound transmission. Many newer condominiums specifically include sound transmission or hard flooring 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 authority to adopt a reasonable rule regarding hard flooring. NRS 116.31065 requires that the rules adopted by an association:
1. Must be reasonably related to the purpose for which they are adopted.
2. Must be sufficiently explicit in their prohibition, direction or limitation to inform a person of any action or omission required for compliance.
3. Must not be adopted to evade any obligation of the association.
4. Must be consistent with the governing 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 governing documents of the association.
5. Must be uniformly enforced under the same or similar circumstances against all units’ owners. Any rule that is not so uniformly enforced may not be enforced against any unit’s owner.
6. May be enforced by the association through the imposition of a fine only if the association 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 consistent 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 lot, the board could not adopt a rule requiring an owner to make that expenditure because there is no basis in the governing documents for it.
“While your governing documents may not have a specific restriction on hard flooring, most declarations include one or more of the following: a covenant of quiet enjoyment, a nuisance restriction, and/or a requirement that owners comply with applicable laws and ordinances. Any one of these provisions could support a rule on hard flooring.
“A covenant of quiet enjoyment ensures the owner's right to reasonably use his/her unit without disturbance. A typical ‘quiet enjoyment’ covenant might read as follows: '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, quiet, safety, comfort, or serenity of the occupants and invitees of other Units.'
“A nuisance occurs when one person uses his or her property in an unreasonable way that substantially interferes with another person’s ability to use and enjoy their property. Below are two examples—quite different in style—but which would both support a rule to regulate excessive noise from hard flooring:
‘No noxious or offensive 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 vegetation, wildlife, or air quality within the Properties or which results in unreasonable levels of sound or light pollution.'
“Finally, many governing documents include a provision that makes a failure to comply with applicable laws and ordinances a violation of the governing documents: 'No Use Restriction or Rule shall interfere with the activities carried on within the confines of Dwelling Units, except that the Association may prohibit activities . . . that create an unreasonable source of annoyance, or that otherwise violate local, state, or federal laws or regulations.'
“Excessive noise from hard surface flooring could substantially interfere with another owner’s right to reasonably use and enjoy their property. If your county or city has adopted the IBC's sound transmission standards or other similar standards, then the noise generated by hard flooring could constitute a violation of the law or ordinances.
“The second element of NRS 116.31065 we will look at is ‘a rule must be reasonably related 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 it must have some rational relationship to a legitimate association interest. Your condo association has adopted a rule that allows hard flooring in those areas where carpet would be an unsanitary and inappropriate choice (kitchens, bathrooms and laundry rooms) but restricts it in sleeping and living areas where most owners expect reasonable quiet. A court would likely conclude that this rule is reasonably related to its purpose of minimizing nuisance and ensuring quiet enjoyment.
“However, your board could consider amending the rule to allow hard flooring in bedrooms and living areas which meets applicable noise standards. Such a rule may require the installing owner to provide evidence that the flooring and underlayment selected meets the applicable standard as installed.”