By Alyssa Gautieri
This issue seems to come up every year. What can an association do about over-the-top holiday decorations, and the ones that seem to stay up all year?
An association may choose to implement rules surrounding holiday decorations to regulate the practices of its residents and to maintain the aesthetics of the community. Associations may also choose to enforce rules regarding holiday decorations to ensure that decorations do not damage common elements, threaten public safety, restrict necessary maintenance activities, or interfere with the property rights of other residents. When it comes time to draw up these rules and policies, how can an association ensure they deal with the issue of holiday decorations in a fair, non-discriminatory manner?
According to David L. Dockery, an attorney with Becker & Poliakoff in Morristown, New Jersey, the first thing to remember is that no specific holiday or religion should be referenced in any rules or policies. For example, a rule should mention “holiday lights” rather than “Christmas lights.”
According to Dockery, “many religions and cultures use similar decorations throughout the year.” An association should not assume which holidays its residents may celebrate. For example, lights that have been put up for Chinese New Year may be mistaken for Christmas lights that have been left up too long.
When it comes to displaying holiday decorations and religious symbols, there should be a written rule which is enforced year-round, according to Dockery. “A policy or rule should not be implemented only during a holiday season,” he said.
Dockery cautions against complete bans and prohibitions for holiday decorations. “Even seemingly neutral restrictions may have a “disparate impact,” – which is a policy, practice, or rule that appears to be neutral, but has a discriminatory impact on a particular group. Additionally, associations can “absolutely not” prohibit religious statuary, but can impose reasonable size and location regulations, according to Dockery. Nonetheless, for many religions, the location of religious items is relevant to its placement.
Further, absolute restrictions and bans may also single out various cultures and religions without having the intent to do so.” For example, an association may prohibit anything from being mounted or nailed to the exterior of the unit or around the doorway. While this may sound like a reasonable restriction, it may prevent certain religious groups from following their specific beliefs.
Instead of outright bans and prohibitions, rules and policies should be focused on specifics — like the timeframe that the decoration can be displayed or the allowed size of the decoration. In terms of timeframe, “my recommendation is always that decorations are allowed to be put up two weeks before the holiday and left up for two weeks after the holiday,” Dockery said.
In the case that a resident is in violation of the policies set forth (and refuses to remove specific decorations or religious articles), an association should take action as it would for any other violation of the rules and regulations. “However, if a resident is violating the rules and regulations, particularly something like holiday decorations, I think a temperate approach at first is prudent,” said Dockery, who first recommended a phone call or informal inquiry be made as the decoration may be legitimately displayed for a holiday to which the Association is unaware.
After an informal approach, Dockery noted that a fine (if allowed in the governing documents and that particular state’s law) may be implemented. (Note that in New Jersey, Alternative Dispute Resolution (“ADR”) must be offered prior to the imposition of the fine on the owner’s account.) Dockery cautioned against selective enforcement, particularly when it comes to holiday decorations. “If a board is going to enforce regulations (such as by fining), then it must do it uniformly to avoid any discrimination claims,” he said.
For a board that wants to implement new rules about holiday decorations or change the current rules, Dockery suggested that the board be open to consulting its residents. Dockery recommended using a survey or hosting a meeting, or any way to gather input from the community.
Gathering input from the community “is a great way for a board to learn about its community, and all of the traditions and cultures that live within the community. It’s a really positive way to get the community involved. If the board approaches it from a perspective that is open and inclusive, it can help the community come together and encourage the idea that residents of different backgrounds and religions can live harmoniously,” Dockery said.