Traditionally, during this time of year many Americans enjoy displaying lights, wreaths and other decorations as part of the holiday season. However, what happens when a person moves into a condominium project and the Condominium Association’s property manager or the Board indicates there are restrictions on what items can be hung, where those items can be hung, how long the items can be hung and when lights are permitted? All too often, a co-owner may become irate and challenge the restrictions as unfair or a violation of the co-owner’s legal rights. In such situations, a co-owner may be torn between family traditions and complying with community restrictions.
Some 66 million Americans live in a shared ownership community. A hallmark of shared ownership living is that a co-owner gives up some individual rights for the good of the community as a whole. Consequently, whether an individual lives in a condominium, a homeowner’s association, a co-operative or a summer resort association, in exchange for having the lawn mowed, the streets, driveways and sidewalks plowed and the outside of the units painted; each co-owner has some restrictions on what can and cannot be done, including holiday decorations.
In order to properly address the displaying of holiday decorations, a Board should first examine its goals in establishing restrictions. If restrictions are deemed appropriate, the Board should consider holiday decoration restrictions, in general, rather than any specific holiday because doing so could expose the Association to a lawsuit regarding a co-owner’s religious beliefs. Moreover, the restrictions should not dictate the content of the decorations. Finally, the Board should place the restrictions in the Association’s declaration or bylaws and then utilize rules and regulations to implement those restrictions.
After determining its goals, the Board should review the Association’s declaration and/or bylaws to determine its authority to set a policy on decorations and what written provisions, if any, were included in the recorded documents. In most instances, the Board will have the right to regulate any holiday decorations placed on the common elements or on individual homes. This includes items such as outside lights, blow-up decorations, seasonal greenery and decorations that play music. In condominiums, most Associations will have restrictions that prohibit residents from attaching lights or individual decorations to the general common elements. In the case of a homeowner’s association, the Board can generally regulate decorations because the decorations modify home exteriors.
After reviewing the declaration and/or bylaws, the Board should study past policies adopted by previous Boards for the Association and determine if any changes need to be made. A copy of the policy should be mailed to each co-owner, if changes are made. Also, a property manager may wish to include a copy of the policy in the Association’s newsletter in advance of the holiday season.
Whether the Board implements past policies or adopts new ones, the restrictions should be reasonable as to the 1) time, 2) placement and 3) size of the decorations. When creating timing restrictions, the Board should examine how long the decorations should be available during the holiday season and at what times the lights and/or sound can be on, i.e. on at dusk and off by 11:00 p.m. With regard to decoration placement, the Board will need to determine if the decoration can be placed on the roof, lawn, front yard, backyard, doors, windows and/or roof line. The Board should also make a determination on whether to restrict the size of the decorations. For example, the Board can limit the length and/or the amount of decorative lights. Typically, co-owners do not want to live beside the Griswolds (Christmas Vacation) or Buddy Hall (Deck the Halls) with the night turning into day and/or excessive traffic in the community by gawkers traveling to see the lights.
Frequently, the Board may decide to decorate the common areas itself. The Board should take care to ensure that decorations and holiday displays do not give the impression that the community favors one particular religion over another. If the Board were to do so, it could subject the Association to potential discrimination claims under the Fair Housing Act (FHA) and other federal and state fair housing laws. As a matter of prudence, I frequently advise Boards to avoid decorating the common areas. In the event that the Board decides otherwise, it may be prudent to hang general holiday decorations and signs that state Happy Holidays or other non-religious language. However, if religious symbols are utilized, the Board should ensure that it allows equal treatment for other religious symbols. Please note that the FHA restrictions do not apply to religious displays by private homeowners.
Another recent development regarding holiday decorations pertains to our service men and women involved in ongoing conflicts around the world. As an example, a co-owner may request an exception to the time restrictions for holiday decorations. In such an instance, the Board may establish a policy for such families to make a written request to the Board that includes the date when the family member is expected to return home in order to allow the Board to monitor which owners have a legitimate reason for not removing decorations and which owners simply have not complied with the Association’s restrictions. The policy should indicate that any lights and other decorations should be removed within seven (7) days after the family member returns home.
Finally, the decoration restrictions should clearly state the penalties for noncompliance. For practical and legal reasons, the Board should remember to set reasonable standards. All too often, a Board will create intricate restrictions on holiday decorations that other owners have found to be loud, obnoxious and/or extravagant. As a result, the Board’s knee-jerk response often leads to poorly written policies or documents, unreasonable restrictions or otherwise inconsistent provisions. If a community’s restrictions have been properly drafted, implemented and enforced in a reasonable and consistent manner, family traditions can continue even after moving into a shared ownership community. Have a happy and safe holiday season!
William Kolobaric is an attorney in our Livonia office. He may be reached at (734) 261-2400 or firstname.lastname@example.org.
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