Naughty or Nice? Holiday Guidelines to List and Check TwiceOct 25, 2021
By Daniel C. Heaton, Esq.
This article first appeared the CAI-CV, Quorum, October 2021 here.
‘Tis the season. For many homeowners, this time of year is eagerly anticipated and cherished. For some board members and association managers, it may instead trigger a sense of dread. Residents often have passionate feelings about their holiday traditions and dislike being told that their favorite decorations are not permitted.
Following are a few tips for creating a holiday decorations policy to help ease this stress and keep the holiday spirit alive.
1. Don’t Lose Sight of the Goal
While the primary function of the association is to maintain the community and improve property values, the spirit of the holidays should be kept in mind. Don’t enact strict restrictions when less will suffice.
Adopting a decorations policy should not be a complicated or controversial process. Where possible, frame the new rules in encouraging and proactive tones, addressing not what the residents cannot do, but instead what they can: “Residents may display holiday lights and décor from 30 days prior to the holiday until 2 weeks after.”
2. Know the Reach of Your Authority
The regulations that can be included in your policy will depend on how your governing documents are written. Generally, the association will have “architectural control,” that will enable the board to enact rules pertaining to aesthetics in the community.
The reach of the association’s authority may be different in a condominium project than in a planned development. Is an owner planning to string holiday lights on her own separate interest or is the plan to hammer small nails into the common area of a condominium? Associations should work closely with legal counsel to set decoration guidelines based on the specific terms of the governing documents.
3. Involve the Whole Community
Association rules should be crafted in advance and not merely reactionary. Engage members in a conversation on whether the community would benefit from a policy for holiday decorations. Poll the owners on specific issues to learn of the community’s overall preference. Consult with your association manager and legal counsel, as they may know of other communities with similar issues.
4. Pay Attention to Flashing Lights
While associations can regulate the display of holiday decorations, boards must act carefully to avoid claims of discrimination. As housing providers, community associations are prohibited from engaging in discriminatory housing practices on the basis of any protected class, including religion.
In addition to Federal and California Fair Housing laws, in July 2019, California adopted SB 652, which added Civil Code section 4706 to the Davis-Stirling Act. This section prohibits an association from limiting the display of “religious items on the entry door or entry door frame” as long as it reflects “sincerely held religious beliefs.” This provision invalidates any potential policy that would attempt to require owners to take down religious items such as a mezuzah or cross.
As a result, boards should pay close attention to these possible areas of trouble. Refrain from naming any specific holidays in your rules. Do not include pre-approved (or prohibited) lists of symbols or content. Colors may even be closely tied to certain holiday or religious views to the exclusion of others, so do not attempt to adopt specific holiday color schemes.
Ensure that guidelines are applied in an unbiased matter and remain open-minded in any enforcement actions. Given the heavy penalties for Fair Housing disputes, be quick to dismiss potential violations that arise out of misunderstandings involving religious holidays, particularly those that are not “traditional.”
5. Adopt Reasonable Time, Place and Manner Restrictions
Instead of focusing on the content of an owner’s decorations, which may be deemed religious discrimination, restrictions should govern the “time, place and manner.” Often an association will have more authority to regulate if a display is creating a safety hazard or preventing neighbors from enjoying their homes.
- Time: Associations may regulate when owners may start decorating and how long decorations can remain up after the holiday has passed. The policy may also govern what time of day owners may turn on their holiday lights. Some associations impose “dark hours” requiring owners to keep their lights off during the night, such as between 11pm and 6am. This allows neighbors to sleep without bright, sparkly lights filtering through their windows.
- Place: Associations may regulate the space where lights may be hung, such as along the roof line, windows, external doors, or in the front yard. Boards should consider restricting displays that are anchored to the roof. In many circumstances, these types of displays implicate common area concerns and may also be a serious safety concern.
- Size: Associations may impose size restrictions to maintain the overall aesthetic of the community. This means that the board may decide to prohibit the 10-foot inflatable snowman or the life-size nativity scene, as long as those rules are universal, without cultural or religious bias (e.g., prohibiting large plastic or inflatable decorations in general).
- Noise: Some owners may want displays that literally incorporate “jingle bells.” This is one area where community involvement can be invaluable. Some communities may wish to ban sound elements altogether, while others may only want to restrict noise to appropriate times. In most cases, while it may be helpful to provide additional guidance to residents through a holiday policy, problems involving excessive noise can usually be curtailed as a nuisance instead of a violation of holiday rules.
- Lights: Associations may wish to incorporate rules that warn that the amount of lights used could be too bright and would be considered a nuisance. Ask owners to consider the impact of their display on their neighbors. Additional restrictions could limit flashing or distracting lights which may cause seizures or might be a hazard for drivers.
- Appropriate: The association may want to consider input from the community to formulate a policy that limits disrespectful, derogatory, excessively violent, or realistic decorations to ensure everybody in the neighborhood feels comfortable in their living environment. For example, Halloween is particularly well-known for prompting decorations that might be a little too realistic and can lead to complaints. This would be another good time to remind owners to be considerate of their neighbors in selecting displays. As it is often hard to define what is “too much” in advance, the decorations policy should include the right for the board or architectural committee to disapprove displays. That way if an owner includes something unanticipated, the committee can ask that it be modified or removed.
6. Continue to Communicate Expectations.
After the holiday policy is adopted, or whenever there are any changes to the rules, make sure the information is provided to all owners in a timely manner. Consider including a brief explanation of why the restrictions are necessary to prompt easier compliance. Encourage further communication in advance of the holidays if there are questions or if anything is not clear. Owners should be reminded of the policy prior to each holiday season.
The holidays don’t have to be a stressful time for your association. Remember that everyone celebrates differently. By involving the community in creating a holiday decorations policy comprised of reasonable time, place, and manner restrictions, the board can set clear expectations and ensure that community standards are maintained.