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CC&R’s restriction on second floor flooring

Thank you for great information regarding
latest ruling regarding HOA restrictions.
I live in a condo and I have a question regarding our CC$R’s
The original CC&R’s section 9.18 reads “No wood, tile or similar hard surface floors are to be used in the second floor of any unit, except for entryway kitchen and/or baths, without the prior written consent of the declarant, so long as the declarant owns any portion of the property.
The declarant no longer owns any part of the property. The units were built in 1997.
Section 9.18 of the CC&R’s have never been amended.
However our rule states “ Owners of second floor units may not replace carpeted area with wood, tile or similar hard wood floor covering materials except for entry way, kitchen and bathrooms.
So my question is?
What Happens to section 9.18 of our CC&R’s after declarant is no longer an owner. I cannot find anything in our CC&R’s or anywhere else about that.
Many homeowners in here no longer want carpet , but want to install hardwood or tile in living areas.
Do we have a case to pursue this in your opinion.
Thank you
Bente Hewitt

2 Responses

  1. DennisL

    Bente,

    Technically the CC&R provision is void unless some provision in the CC&R’s would allow the association as successor to the declarant to assume the rights of the declarant within this document. The association could amend the declaration to make it relevant to the current situation, but may not have too.

    As a general rule of Property Servitude Common Law, the association can create a rule to prevent use of one unit from interfering with the use and enjoyment of any other unit even without a specific restriction in the declaration to that effect. . Carpeting in condominiums is broadly considered noise suppression, while hard surface flooring would be noisy for the downstairs neighbor. You would be assured that the association would argue that this rule is only to protect the lower unit owners from excessive noise from simple walking in the upper units. There is some real truth to that so it would be hard to argue against this provision in court and win. In my opinion.
    Dennis

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