Morrison Law Journal


The Morrison Law Journal February 2015 Volume X, Edition 2 Cover That Floor With Carpet….Court Of Appeal Affirms Trial Court’s Grant Of Preliminary Injunction Requiring Condominium Owner To Remedy Unauthorized Modification Of Flooring In Spite Of Unit Owner’s Claims Of Severe Dust Allergies By: Edward F. Morrison, Jr., Esq. Larry A. Schwartz, Esq.
California has many residents that live in condominium owned, multi-unit buildings which are governed by Covenants, Conditions and Restrictions, By-Laws and other documents dealing with rules and regulations. One of the major issues that have arisen in California with respect to condominium owned, multi-unit buildings deals with noise transmission and what homeowners associations can do in regard to complaints regarding modifications or improvements which result in substantial additional sound transmission. In that regard, many owners of “upper level” units in condominium owned, multi-unit buildings have argued for the removal of carpeting due to dust and claims of allergies, while “lower level” unit owners have cited restrictions against removal of carpet which are often set forth in governing documents and excessive noise transmission. Owners associations have often been caught in the middle and questions have arisen as to whether the owners association can take legal action against an offending unit owner and if it must proceed to a full trial on the merits if suit is filed. That question has now been answered in part in Ryland Mews Homeowners Association v. Ruben Munoz (2015) WESTLAW 738266 (“Ryland Mews”). In Ryland Mews, defendant Ruben Munoz and his wife moved into unit No. 322 of the subject property in February 2011. Munoz replaced the carpets with hardwood floors to accommodate his wife’s severe dust allergies. After installation, two occupants of the unit below began to experience sound transfer and complained. In November 28, 2011, the firm that provided property management services for the owners association wrote Munoz notifying him that his alteration of the flooring appeared to have been made without prior approval of the owners association. Munoz did not respond and in January 2012 the owners association wrote Munoz requesting alternative dispute resolution (“ADR”) under the Davis–Stirling Act pursuant to former Civil Code section 1369.530 (now Civil Code section 5935). Included in the letter was text from former Civil Code section 1369.530 which expressly allowed defendant 30 days 1 in which to accept or reject ADR and that, after that period, the request was to be deemed rejected. Munoz still did not respond. The owners association then brought a civil lawsuit on July 12, 2012 seeking an injunction and declaratory relief. The owners association alleged that Munoz had violated restrictions applicable to all residents at the time of the floor installation. The owners association relied on provisions from a 1993 “Declaration of Restrictions” which provided, among other things, that “[n]o 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”; “[n]o 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 that prior written approval had to be obtained from the Architectural Review Committee before “[a]ny replacement or modification to any floor coverings” could occur if that could “result in any increase in the sound transmissions from the Unit to any other Unit.” It does not appear that the owners association relied on the services of an acoustical consultant or that any sound transmission tests were conducted. On September 28, 2012, the owners association applied for a preliminary injunction “restraining and enjoining” Munoz from “[m]aintaining hardwood flooring” and from violating other HOA restrictions. Attaching declarations from the lower unit owners, the owners association alleged that, without the requested injunction, adjacent homeowners would continue to suffer “great and immediate irreparable harm in that Defendant's hardwood floors create an acoustic nuisance, both violating the neighboring owner's sense of quiet enjoyment, but also [ sic ] reducing property values for all owners within the Association.” The owners association further asserted that it was “inevitable” that it would ultimately prevail in the action and that compliance with the HOA rules would be of only “moderate” cost to defendant. Munoz opposed the motion contending that hardwood floors were necessary in his home because his wife was severely allergic to dust; consequently, removing the floors and installing new floors not only would be expensive but would endanger his wife's health. He argued the likelihood of the owners association's success on the merits to be “questionable” and maintained that no irreparable harm had been shown. Both Munoz and his wife, Elena Delgado, submitted declarations describing Delgado's medical condition. 2 Following Munoz’ successful challenge on the basis that the owners association had failed to file a certificate stating that the ADR requirements set forth in former Civil Code section 1369.530 had been met or waived, the Trial Court granted a preliminary injunction which required, among other things, that 80% of the total flooring area, other than kitchen or bathrooms, be covered with throw rugs or comparable sound muting and which barred further changes to the flooring unless consistent with HOA rules. Munoz appealed arguing that the Trial Court abused its discretion in granting the preliminary injunction (Munoz argued that the preliminary injunction was mandatory and not prohibitory) and that the Trial Court lacked jurisdiction because the ADR request did not comply with the Davis–Stirling Act (Munoz argued that he had not been provided with a complete copy of former Civil Code section 1369.530). The Court of Appeal affirmed the ruling of the Trial Court. As for the challenge based on the request for ADR, the Court of Appeal ruled that the owners associations’ request for ADR was only “technically” deficient” and there was no prejudice even though Civil Code section 1369.530 required that a complete copy of the statute accompany the ADR request. The Court of Appeal also ruled that there was no abuse in discretion in granting the preliminary injunction (even if it was mandatory) and pointed out that the Trial Court’s directive was to find a compromise as well as an interim remedy of using throw rugs and reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant's violation of the noise and nuisance restrictions. The Ryland Mews case certainly provides solid authority in favor of owners associations where they are seeking relief based on governing documents. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. 3 Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 4

California has many residents that live in condominium owned, multi-unit buildings which are governed by Covenants, Conditions and Restrictions, By-Laws and other documents dealing with rules and regulations. One of the major issues that have arisen in California with respect to condominium owned, multi-unit buildings deals with noise transmission and what homeowners associations can do in regard to complaints regarding modifications or improvements which result in substantial additional sound transmission. In that regard, many owners of “upper level” units in condominium owned, multi-unit buildings have argued for the removal of carpeting due to dust and claims of allergies, while “lower level” unit owners have cited restrictions against removal of carpet which are often set forth in governing documents and excessive noise transmission. Owners associations have often been caught in the middle and questions have arisen as to whether the owners association can take legal action against an offending unit owner and if it must proceed to a full trial on the merits if suit is filed.

That question has now been answered in part in Ryland Mews Homeowners Association v. Ruben Munoz (2015) WESTLAW 738266 (“Ryland Mews”). In Ryland Mews, defendant Ruben Munoz and his wife moved into unit No. 322 of the subject property in February 2011. Munoz replaced the carpets with hardwood floors to accommodate his wife’s severe dust allergies. After installation, two occupants of the unit below began to experience sound transfer and complained. In November 28, 2011, the firm that provided property management services for the owners association wrote Munoz notifying him that his alteration of the flooring appeared to have been made without prior approval of the owners association. Munoz did not respond and in January 2012 the owners association wrote Munoz requesting alternative dispute resolution (“ADR”) under the Davis–Stirling Act pursuant to former Civil Code section 1369.530 (now Civil Code section 5935). Included in the letter was text from former Civil Code section 1369.530 which expressly allowed defendant 30 days

in which to accept or reject ADR and that, after that period, the request was to be deemed rejected. Munoz still did not respond.

The owners association then brought a civil lawsuit on July 12, 2012 seeking an injunction and declaratory relief. The owners association alleged that Munoz had violated restrictions applicable to all residents at the time of the floor installation. The owners association relied on provisions from a 1993 “Declaration of Restrictions” which provided, among other things, that “[n]o 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”; “[n]o 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 that prior written approval had to be obtained from the Architectural Review Committee before “[a]ny replacement or modification to any floor coverings” could occur if that could “result in any increase in the sound transmissions from the Unit to any other Unit.” It does not appear that the owners association relied on the services of an acoustical consultant or that any sound transmission tests were conducted.

On September 28, 2012, the owners association applied for a preliminary injunction “restraining and enjoining” Munoz from “[m]aintaining hardwood flooring” and from violating other HOA restrictions. Attaching declarations from the lower unit owners, the owners association alleged that, without the requested injunction, adjacent homeowners would continue to suffer “great and immediate irreparable harm in that Defendant's hardwood floors create an acoustic nuisance, both violating the neighboring owner's sense of quiet enjoyment, but also [ sic ] reducing property values for all owners within the Association.” The owners association further asserted that it was “inevitable” that it would ultimately prevail in the action and that compliance with the HOA rules would be of only “moderate” cost to defendant.

Munoz opposed the motion contending that hardwood floors were necessary in his home because his wife was severely allergic to dust; consequently, removing the floors and installing new floors not only would be expensive but would endanger his wife's health. He argued the likelihood of the owners association's success on the merits to be “questionable” and maintained that no irreparable harm had been shown. Both Munoz and his wife, Elena Delgado, submitted declarations describing Delgado's medical condition.

Following Munoz’ successful challenge on the basis that the owners association had failed to file a certificate stating that the ADR requirements set forth in former Civil Code section 1369.530 had been met or waived, the Trial Court granted a preliminary injunction which required, among other things, that 80% of the total flooring area, other than kitchen or bathrooms, be covered with throw rugs or comparable sound muting and which barred further changes to the flooring unless consistent with HOA rules.

Munoz appealed arguing that the Trial Court abused its discretion in granting the preliminary injunction (Munoz argued that the preliminary injunction was mandatory and not prohibitory) and that the Trial Court lacked jurisdiction because the ADR request did not comply with the Davis–Stirling Act (Munoz argued that he had not been provided with a complete copy of former Civil Code section 1369.530).

The Court of Appeal affirmed the ruling of the Trial Court. As for the challenge based on the request for ADR, the Court of Appeal ruled that the owners associations’ request for ADR was only “technically” deficient” and there was no prejudice even though Civil Code section 1369.530 required that a complete copy of the statute accompany the ADR request. The Court of Appeal also ruled that there was no abuse in discretion in granting the preliminary injunction (even if it was mandatory) and pointed out that the Trial Court’s directive was to find a compromise as well as an interim remedy of using throw rugs and reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant's violation of the noise and nuisance restrictions.

The Ryland Mews case certainly provides solid authority in favor of owners associations where they are seeking relief based on governing documents.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.