The Board has the legal right to exercise its “business judgment” as to whether to enforce its House Rules. Thus (for example) it may decline to enforce an 80% carpeting requirement unless it receives a noise complaint. Likewise, the Board can decide not to enforce the prohibition against hanging decorations on doors during the holidays. In that case, theoretically the offensive owner could make the claim that the Board was arbitrarily treating him differently from other owners. The Board is actually relying on the House Rule that bars owners from engaging in activities that would disturb other owners, though, not the House Rule that prohibits decorating doors. On that count, the owner would have little claim. Alternatively, the Board could modify its House Rules to specify that owners may not display personal property or engage in activities visible from the exterior of the Home that would unreasonably disturb other owners, and rely on that clause.
Kenneth Jacobs
Spolzino Smith Buss & Jacobs LLP
733 Yonkers Ave
Yonkers, NY 10704-2635
(212) 688-2400 ext 4102
kjacobs@ssbjlaw.com
www.ssbjlaw.com
Spolzino Smith Buss & Jacobs LLP
733 Yonkers Ave
Yonkers, NY 10704-2635
(212) 688-2400 ext 4102
kjacobs@ssbjlaw.com
www.ssbjlaw.com
Ah, the slippery slope. The owner is probably correct here. There is a rule, but the Association either doesn’t enforce it or selectively enforces it. So going forward, either there is no rule – and the Association is in the Wild West when it comes to decorations – or it will be fully and evenly enforced and no owner can decorate outside their unit. The only leeway I see is that if the exterior of doors (or even exterior doors as a whole) are part of the Unit, then owners can decorate the exterior of doors.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
saustin@austinlawllc.com
The Association Board should come up with a rule allowing holiday decorations that are tasteful and appropriate and disallowing inappropriate, obscene, or benevolent decorations. The rules should give the Association the right to remove prohibited or inappropriate decorations. The Association may want to include examples of what is appropriate (i.e. wreaths, garland, etc.) and what isn’t (i.e. demonic, obscene, etc.) appropriate.
Based on the above, the Association can allow/disallow decorations based on what they deem is appropriate and inappropriate.
Based on the above, the Association can allow/disallow decorations based on what they deem is appropriate and inappropriate.
David Hellmuth
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
dhellmuth@hjlawfirm.com
www.hjlawfirm.com
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
dhellmuth@hjlawfirm.com
www.hjlawfirm.com
The question doesn’t explain the type of community (high rise condo, separate townhomes, single family homes, etc.) and the amount of control will vary with each type of community. The question also doesn’t provide the declaration covenant and the rule in question. All of these are essential to provide a proper response.
In situations where the association has the authority to control exterior decorations, it also has the authority to reasonably regulate the appropriateness of such decorations. Decorations which are directly discriminatory against a protected class, could create a Fair Housing Act violation in certain circumstances. Decorations which merely lack good sense and class, certainly reflect on the owner, but their regulation is more dependent on the language of the restrictions. The ability to employ self-help, also depends on the language of the covenant
Stephen Buschmann
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
buschmann@indiana-attorneys.com
www.indiana-attorneys.com
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
buschmann@indiana-attorneys.com
www.indiana-attorneys.com
This is a good example of why the optimal structure for governing documents is for any provisions involving exterior aesthetics, appearance or design to NOT be specific, detailed or regimented within any document that can only be modified by amendment via vote of a percentage of the lots, but instead for the Master Deed/Declaration to contain enabling language which grants the Board the authority to enact more specific provisions via a resolution requiring only a vote of the majority of the Board, and not a vote of a percentage of the owners (as would be required to amend the Master Deed, Declaration or By-Laws). In this situation, if under the existing Master Deed or Declaration the Board has the authority to enact and to amend/modify the rules and regulations without the need to amend the Master Deed or Declaration by vote of the owners, then it should enact a rule which states as follows:
“Decorations or any item or thing on or at the exterior of a unit, including but not limited to doors and windows can reflect individuality, personality, and character; however, such decorations must be in good taste and within the values espoused by the community. The exterior of a units are visible to other members, guests and the public; therefore limitations can and will may be imposed by the Board if and when decorative items placed on the exterior of units, including but not limited to doors and windows, are in poor taste, lewd, offensive, or inconsistent with community standards. Damage charges and/or fines may be incurred for failure to adhere to this rule. Further, the Board or its appointed agent(s) may without notice physically remove and confiscate any decorations or any item or thing on or at the exterior of a unit which the Board determines to be in violation of this rule. In enforcing this rule, and in determining what does and does not constitute a violation, the Board shall have complete and unfettered discretion, in light of its critical role and purpose of maintaining a high character of community development and protecting real property from impairment and destruction of value.”
If under the Master Deed or Declaration the Board does not currently have the authority to enact and to amend/modify the rules and regulations or guidelines involving exterior aesthetics, appearance or design without amending the Master Deed or Declaration, then it should be made a priority to amend the Master Deed or Declaration to make this change as soon as practicable. In the meantime, if the Board does not currently have this authority, then it must treat all owners the same and does not currently have the discretion to allow wreaths but prohibit and/or remove other items it deems distasteful or offensive, unless such item violates some other law such as a local ordinance or state or federal law or regulation, which the elf hanging from a noose almost certainly does not.
“Decorations or any item or thing on or at the exterior of a unit, including but not limited to doors and windows can reflect individuality, personality, and character; however, such decorations must be in good taste and within the values espoused by the community. The exterior of a units are visible to other members, guests and the public; therefore limitations can and will may be imposed by the Board if and when decorative items placed on the exterior of units, including but not limited to doors and windows, are in poor taste, lewd, offensive, or inconsistent with community standards. Damage charges and/or fines may be incurred for failure to adhere to this rule. Further, the Board or its appointed agent(s) may without notice physically remove and confiscate any decorations or any item or thing on or at the exterior of a unit which the Board determines to be in violation of this rule. In enforcing this rule, and in determining what does and does not constitute a violation, the Board shall have complete and unfettered discretion, in light of its critical role and purpose of maintaining a high character of community development and protecting real property from impairment and destruction of value.”
If under the Master Deed or Declaration the Board does not currently have the authority to enact and to amend/modify the rules and regulations or guidelines involving exterior aesthetics, appearance or design without amending the Master Deed or Declaration, then it should be made a priority to amend the Master Deed or Declaration to make this change as soon as practicable. In the meantime, if the Board does not currently have this authority, then it must treat all owners the same and does not currently have the discretion to allow wreaths but prohibit and/or remove other items it deems distasteful or offensive, unless such item violates some other law such as a local ordinance or state or federal law or regulation, which the elf hanging from a noose almost certainly does not.
Sean O’Connor
Finkel Law Firm, LLC
PO Box 41489
Charleston, SC 29423-1489
soconnor@finkellaw.com
www.finkellaw.com
Finkel Law Firm, LLC
PO Box 41489
Charleston, SC 29423-1489
soconnor@finkellaw.com
www.finkellaw.com
In a word, “Yes”. You cannot pick and choose the governing documents you enforce. Absolute enforcement of rules is not required, but if you want to make exceptions for Christmas wreaths and the like, you should articulate a new rule. I might suggest some degree of community discussion before you pass the rule to give everyone a chance to express their opinions as to what is tolerable and what is not.
Robert Griffin
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100
rgriffin@lawgapc.com
www.lawgapc.com
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100
rgriffin@lawgapc.com
www.lawgapc.com