HO, HO, HORRIBLE!
HOLIDAY DECORATIONS MAY CREATE LEGAL LAND MINES FOR CONDOMINIUM ASSOCIATION BOARDS
Do you hear what I hear?
Holiday music is already playing everywhere.
Children are creating pages-long lists of the gifts they want. And association board members are envisioning the holiday decorations – from the divine to the detestable – that owners will want to display and wondering what on earth to do about them.
Decorating tastes differ, and when it comes to holiday decorations, tastes differ a lot. These differences may seem trivial, but the disputes they trigger and the issues they raise are anything but.
Freedom of religion, freedom of speech, and anti-discrimination laws all may come into play if these arguments end up in court, as they sometimes do.
For boards wondering how to “control” holiday decorations, there are potential legal landmines everywhere. The safest and certainly the easiest approach might seem to be banning all decorations. This would take care of those gigantic inflatable Santas along with displays promoting one religion that might offend those with different religious beliefs. But a blanket ban might also bring discrimination complaints from owners who say it interferes illegally with their ability to practice their religion and their freedom to celebrate it. Enforcing a ban will also be tricky, because some owners inevitably will ignore it. And no board wants to be in court during the holiday season explaining why it ordered owners to remove their nativity scenes, their menorahs, or both.
The legal risks are important, but boards also have to consider the feelings of community residents. Banning decorations will eliminate what is for many a source of delight during the holidays.
If the goal is to promote “peace” and “good will” in the community, prohibiting holiday decorations won’t achieve it.
There is a middle ground between “just say no” and “anything goes” – an approach that doesn’t make the board the Grinch that stole the holiday spirit but also doesn’t leave the community looking as if it had been decorated by the designers who created Chevy Chase’s house in the movie Christmas Vacation. (If you’ve never seen the movie, just imagine every decoration that has made you gawk or gag or both – and multiply it by 1000.) What I’m suggesting may sound like threading an impossible needle, but in fact, it isn’t as difficult as you might assume. Like all regulations, those governing holiday displays should be reasonable, even-handed, and no more restrictive than necessary to achieve your goals.
Make the rules neutral in their intent and their impact. Concentrate on objective concerns – the size, location and safety of the displays, not their aesthetic appeal – or lack of it. Prohibit - or at least restrict the location of - displays that might create a nuisance for others. Flashing colored lights should not be aimed at a resident’s bedroom window; a gadget that plays Jingle Bell when touched should not be audible to anyone but the owner
Be mindful. Rules that seem benign may not be. One example – and a mistake many boards make – is making the time period during which decorations can be displayed too restrictive. A common rule limiting displays to a period beginning no more than two weeks before the holiday and ending no more than 10 days after it would be reasonable for Christmas – but not for the Chinese New Year, which starts with the new moon and ends with the following full moon – which could encompass 15 or 16 days. Rephrasing the restriction to begin no more than two weeks before the holiday period and end no more than 16 days after it could work, but only if the board pays careful attention to the holiday’s start and ending dates.
Don’t favor one type of display over another. A rule allowing only ‘non-religious’ displays would be problematic, to say the least.
Don’t favor one religion over another. If you allow Chanukah menorahs and Kwanza flags, you can’t prohibit Christmas nativity scenes.
Permit residents to display holiday decorations only in areas they own or control – on their doors, windows, decks and in their exclusive use areas. Don’t allow owner displays in common areas. If the board wants to decorate common areas, such as lobbies and entrances, it should do so conservatively and neutrally. Avoid religious displays. Lights and other generic ‘greetings of the season’ would be safe choices.
Consult community residents. Adopt rules that as much as possible reflect their preferences and concerns. Explain the reasons for the restrictions you adopt and those you don’t. Remind owners of the rules well before the holiday to which they will apply.
Make sure your rules are enforceable. Enforce them consistently with an even (non-discriminatory) hand.
Don’t overreact. These are just holiday decorations, not permanent installations. Even the most obnoxious display isn’t going to hurt anyone, and it will be removed when the holiday ends.
For more information or consultation, please contact your attorney or email law@meeb.com or mgaines@meeb.com. Happy Holidays!!