It’s that time of the year again – the Halloween candy is long gone, Thanksgiving leftovers are a distant memory, and Christmas, Hanukkah, Kwanzaa, and New Years are all approaching, complete with sparkly lights and ornaments, as well as a parade of parties and other festivities. Multifamily buildings – including condos, HOAs, and co-ops – are home to people of many backgrounds, faiths and cultural traditions, so it can sometimes be a little tricky to figure out the best way to observe major holidays.
“Holiday decorations and observance need to be [perceived] as equal and fair,” says Bill Worrall, Vice President at FirstService Residential Florida in Miami. “Unless it is a religious community, then that needs to be exclusively delivered as is prudent.”
So what should you keep in mind for your own community as the holidays approach? Let’s take a look.
Check the Halls
Most people take things like putting up decorations or posting holiday announcements for granted, but in fact, those activities are governed by multiple levels of rules, regulations and sometimes laws.
“It is common for community associations to have rules regulating what owners may hang, place or display on the exterior of residences,” says Hubert Cutolo, an attorney at New Jersey-based law firm Cutolo Barros.
At the most fundamental level, you have the house rules and regulations for a given building or HOA. According to Gregg R. Kurlander, Of Counsel to Kucker & Bruh LLP, a law firm based in New York City, “A board in their discretion may regulate the appearance of public hallways, lobbies, elevators and other common areas throughout the building, and may implement enforcement policies if the rules are violated. The same holds true when it comes time to decorate for the holidays. Although not all cooperatives have formal written decorating policies, the inclusion of decorating policies in a building’s bylaws or house rules will act to greatly reduce the possibility of infractions or contentions between neighbors, and will ensure that decking the hallways with boughs of holly is fun, festive and neighborly.”
These rules – found in a community’s governing documents – should communicate clearly and concisely what is and is not permitted in terms of decorations, while making it a point to be as fair as possible to everyone in the community, regardless of how or what they celebrate. “Any rules governing decorations should be drafted to treat all members or occupants equally,” Cutolo explains. “It bears emphasis that any rules should avoid regulating the content of a proposed decoration to prevent any discriminatory practice.” In other words, banning any and all hallway or door decorations is probably okay – but banning just one kind of decorations (Diwali lights, for example, or Hanukkah menorahs) is definitely not.
Keith Shirley of Meridian Realty Group in Boston, which manages about 1,600 residential condominium units, says most boards put rules in place to define just what will, or won’t, be allowed to deck the halls.
Boards would do best to establish regulations and enforce them, he says. “It’s really dependent on trustees what the rules and regulations are. Smaller, more intimate residences—and even the long-term urban residential areas—seem to have kind of an understanding about the holidays, and people hold a collegial relationship with each other. But on any new building we take over from the developers, we set up rules and regulations, and we highly recommend that the board of trustees adhere to them.”
Why? Any mother of multiple children can tell you that. “If you let one go, everyone else starts to do what they want,” Shirley says. “Enforcement becomes difficult from a management perspective.”
When an association does choose to have and/or enforce restrictions on holiday decorations, those regulations should never be specific to any particular holiday, because doing so could get the community in conflict with residents’ first amendment rights, says Frank Flynn, Managing Partner/Owner of the Boston-based Flynn Law Group. “If a condo wants to restrict decorations, they need to have an across-the-board restriction that restricts all decorations,” Flynn says. “There’s no guarantee that there won’t be a court challenge. Having such a restriction in the bylaws does not make you litigation-proof.”
Scott J. Sandler, an attorney in Farmington, Connecticut, says having rules regarding decorations can be rough territory to navigate. “It’s very difficult, because one man’s art is another man’s trash. With holiday decorations, you want to allow for a reasonable amount of tasteful expression, while maintaining control over the manner of expression,” he says. That’s why many associations have rules that govern the size of a holiday display, as well as where it might be placed on the exterior of a unit. Such rules also often restrict when the display can be put up and when it must be taken down.
Not only must residents be mindful of the covenants, conditions and restrictions (CC&Rs) of their own community, but those who manage the property must also familiarize themselves with applicable laws at the state and federal levels. At no time can the former conflict with the latter – and if they do, state and federal law will inevitably trump individual community bylaws or house rules. Sometimes this legal hierarchy can be the cause of much chagrin on the part of boards and neighbors alike. Such was the case of Louisiana woman by the name of Sarah Childs who placed Christmas lights atop her roof arranged to give the rather novel appearance of a giant hand ‘flipping the bird.’ After much commentary from neighbors and the threat of being arrested, a judge subsequently ruled in Ms. Childs’ favor, allowing her unorthodox display to remain up. The judge ruled that the HOA’s demand to take down the twinkly gesture violated her constitutional right to free speech and due process.
According to attorney Charles VanderVennet of the Law Office of Charles T. VanderVennet PC in Arlington Heights, Illinois, “As a starting point, I suggest that board members become fluent in the language of the association’s governing documents and applicable law. Guidance from the legal counsel may be necessary to interpret or translate those provisions...[and] allow the board to tailor rules and regulations covering holiday decorations that stay within the dictates of both the recorded covenants and the law.”
VanderVennet goes on to say that while some residents might find their association’s rules too strict or limiting, having a legally sound, well-researched policy on the books is crucial in order to be able to defend against accusations of bias or free speech infringement. “It’s better for the board to face complaints with that ‘back-up’ than to face complaints from owners arguing that the rules are improper, too lenient, or unenforceable without it – or worse yet, based on a concept that someone thought was a good idea without having done the necessary homework to support it.”
Inspect the Halls
If your building or HOA is considering amending, updating, or otherwise changing its decorating policy, along with input from your legal counsel, feedback from residents is probably the most important factor to take into consideration.
“The trustees need to enact a bylaw if they have none,” Flynn says. “Most condo trusts require a vote to do that, and they’ll need to get 67 percent of the vote of unit owners, or a similar figure.” He advises that trustees seeking a new bylaw do their homework first: “Do some education about it; talk with people—that always helps. Getting the majority to vote for [it] is not easy. Sometimes, you can’t even get a quorum to show up at an annual meeting. So if you’re going to pass a new bylaw that says no decorations, you may see some opposition.”
While of course you can’t make everyone happy, you can take steps to make sure everyone feels their voice is being heard and respected. Those steps could take the form of a questionnaire, a committee, or even a vote to fine-tune your community’s policy.
If you go with the latter approach, Kurlander suggests remembering the following when adopting or modifying preexisting rules:
Time - Rules should dictate the earliest time when decorations may be affixed, as well as when they should be taken down. Again, sensitivity should be taken by boards to ensure that the time frames implemented are commensurate with the length of each respective holiday.
Place - Rules should specify what part of the common areas may be decorated, and which should be left alone.
Manner - Rules may limit the use of decorations to those that are “tasteful” and/or “appropriate” with the hope and expectation that residents are capable of understanding and adhering to acceptable standards. Bylaws may also state how decorations are to be affixed to avoid damage to common areas.
Respect the Halls
Parties and get-togethers are another hallmark of the holiday season, and it’s common for condo and HOA residents to host events in their building or HOA’s common areas. When a party involves non-resident guests, it’s important for hosts and guest alike to observe the community’s rules, and be respectful of the property and its residents.
“The successful holiday events of which I am aware are inclusive efforts to celebrate wide-ranging aspects of the holiday season,” says VanderVennet. Worrall agrees, adding “Use your professionals – that’s what they’re there for. Managers should also reach out to their peers across the management company.”
Being inclusive and making sure all feel welcome to participate (or not) in holiday events is part of running a respectful and socially cognizant community. With knowledge of legal guidelines, good manners, and a sense of the personal needs of your residents, boards and managers can navigate the holidays graciously and festively.
Oba Gathing is a freelance writer and a frequent contributor to New England Condominium.