Rewrite the flooring rule — and rewrite it as a performance standard

Hawaii house rules written in the tile-and-hardwood era do not obviously reach LVT and LVP, which are now the dominant residential products. A rule that names materials invites exactly this argument. A rule that names a performance level does not.

The practical fix is to specify an acoustic outcome — an IIC or FIIC rating, a required underlayment specification, and a test or certification requirement — and to define the terms the rule uses. That converts “is vinyl plank a tile?” into “does this assembly meet the number?”, which is answerable.

Note the material-change threshold this runs into. Under HRS § 514B-140, a material addition or alteration requires the written consent of sixty-seven per cent of unit owners plus every directly affected owner plus board approval; house rules themselves are adopted by the board under § 514B-104(a)(1). Tightening a flooring rule is house-rule work, not a declaration amendment — but only where the association’s own documents say so.

The second holding: you cannot sue the association for breach of fiduciary duty

“Nomura does not cite authority establishing that he has a cognizable claim against the AOAO for breach of fiduciary duty. We are unaware of such authority,” citing AOAO of 2987 Kalakaua v. Dubois for the proposition that the association itself, “as opposed to individual directors of the board,” is not the right defendant.

That is a live and useful defence. It fits the statute: HRS § 514B-106(a) places the fiduciary duty on “officers and board members,” who “owe the association a fiduciary duty and exercise the degree of care and loyalty required of an officer or director of a corporation organized under chapter 414D.” The duty runs from directors, and it runs to the association.

Two cautions before a board relies on it. It is an unpublished decision. And it does not immunise anyone — it channels the claim toward individual directors, which is what directors-and-officers coverage exists for. Section 514B-143(a)(4) requires the board to obtain D&O liability coverage “at a level deemed reasonable by the board.”

The trap on the other side

After the dispute began, the association adopted encumbrance agreements requiring board consent for in-unit alterations. The panel held that evidence properly excluded as an irrelevant subsequent remedial measure — “Events occurring after a contested event are generally not relevant” — citing Hawaii Rules of Evidence Rule 407.

So tightening the rule after a fight does not help prove the old rule covered the conduct. Fix the rule because the next dispute is coming, not to strengthen the current one.

What is still open

The nuisance claim against the current upstairs owners remains pending, and the counts vacated go back for decision. We do not predict the outcome, and this is not an answer about any one owner’s noise complaint.