It’s your home. You want it to reflect you and your personality. You have the freedom to do that on the inside walls of your dwelling. But what about when your religion, holiday practices or general aesthetics compel you to decorate the outside of your home seasonally?
Uniformity is often part of an association’s mantra. But what should a board do during peak holiday times when decorating can get out of hand? Does the board even have a right to enforce regulations on such matters that can be interpreted as discriminatory? And what about potential damage to buildings and common elements that can occur while affixing these decorations to the eaves and exterior moldings?
Accoring to Martin C. Cabalar, an attorney with Becker & Poliakoff in Morristown, New Jersey, an association can place restrictions on the placement of holiday decorations.
Reasonable Restrictions or Discrimination?
“Restrictions can be created. However, if you’re going to create restrictions, they must be reasonable,” he stated.
But isn’t reasonable an arbitrary term? “Not in the legal sense. If the restrictions are limited to time, place and manner of holiday decorations, then most likely they would be reasonable. Most importantly, restrictions, if any, need to be uniformly adopted and enforced,” Cabalar said. “You want to be careful you’re not discriminating based on religion, for example.”
Cabalar explained how restrictions can become discrimination. “There’s at least two ways I think that can happen. One, you adopt a restriction that obviously allows one display of a religion, but not another. Or two, if your restriction is on something that is necessary to the practice of the faith or the religion.” Cabalar gave an example of an ornament that is traditionally on the outside of a dwelling. “One item that comes to mind is the mezuzah. It’s a small item that goes on a door. It is very traditional in nature to the practice of the Jewish religion,” he said.
Calabar stated that it is important to tread lightly when coming up with individual policies about holiday decorations. “I think you have to be careful when you are talking about restrictions,” he said.
“Typically, I would never recommend an all-out ban. It’s not to say there’s anything that would restrict an association from doing an all-out ban. But I do think if that issue was ever brought up to the Supreme Court of New Jersey, and to my knowledge it has not yet, I can see the court going the same way it did on political free speech in condominium associations. Meaning that you can only place reasonable time, place and manner restrictions, not an all-out restriction,” Cabalar said.
Cabalar doesn’t recommend boards drafting these policies without input from an attorney. “I think the best approach is to adopt uniform rules for holiday decorations in consult with your legal counsel,” he said.
With all of the different holidays throughout the year, is it tough for boards to come up with any kind of guidelines? “That’s why your policy needs to be uniform,” said Cabalar.
Why and How To Regulate
But discrimination is not the only concern when coming up with seasonal exterior decorating policies. According to Cabalar, some of the other things you want to be careful about are safety issues, and issues where people may damage the common elements. He said that safety can play a major role in a rule change. “In your policy as a whole, if you’re adopting something because it is a safety issue, for example if you don’t want people putting things up on the roof, that is a reasonable restriction. The same could be true of affixing things to common element siding. You don’t want people screwing things into siding,” said Cabalar.
As with most changes to association rules, Cabalar suggested that the board exercise transparency. “The policy could be difficult to adopt, because you are dealing with holidays at different times of the year. However, you’re talking about adopting something that is very much uniform in nature. Once everyone gets used to it, and you are open and honest to the community about it, the rules and restrictions and what they are, typically at that point, things run pretty smoothly,” he said.
Who decides what’s naughty and nice when it comes to holiday decorations? “You want to be careful not to let any of your rules and regulations hinge on aesthetics,” Cabalar warned. “What’s visually pleasing to one person may not be to somebody else. I don’t think that a board should be judging morality. That’s not the role of the board. When somebody goes beyond certain morals or is offensive, I think before you take any action, you want to consult with independent legal counsel.”
Should a board form a committee to insulate themselves from this dilemma? Cabalar said, “When you set up a committee, you’re not insulating the board. The committee acts at the direction of the board. Typically, a committee would not be making the final decision. The job of the committee is to advise the board. There are tasks that are rather time consuming that you may put off to the committee, but the board ultimately needs to make the decision,” he said.
So what is the best way for the board to protect itself? “The way to give the board the best protection, to know that their restrictions are reasonable, is to adopt regulations in consult with their attorney,” Cabalar said.
Cabalar’s final piece of advice is to make sure that your policies are fair and for everyone. “First and foremost, the policy cannot be discriminatory. That is what I worry about when associations talk about doing total bans or restrictions. You create the avenue, even if it wasn’t intentional, for someone to say ‘you did this because of my religion.’ You have to be very careful that your policy is not discriminatory towards any one religion. Sometimes that can happen by just favoring one over another unintentionally. To avoid this, you must make sure that your policy is not discriminatory in any sense.”