Tuesday, October 18, 2011

It's beginning to look a lot like....holiday decorating time once again in association-land!

I took my daughter and her friends recently to Halloween Horror Nights in Orlando. The weather was beautiful, the haunted houses were indeed fantastically spooky and other than a three-hour car ride listening to some truly awful music dictated by the younger occupants in the vehicle, the trip couldn't have been any nicer. If you have experienced Universal at Halloween, you were probably as amazed as we were at the staging that goes into this event. Abundant holiday-appropriate lighting, music and decorations set the tone.

When I returned home, I noticed that many of the houses in my own homeowners' association had already started putting out their decorations for Halloween including a pretty elaborate display down the street. This started me thinking about the various issues that crop up in common interest ownership communities when it comes to owners decorating their own properties as well as boards decorating the common areas.

So what are some of these issues?

Could an association pass a rule that flat out bans holiday decorations?

There is abundant caselaw in the state of Florida which provides that board rules and regulations must be reasonable in order to be enforceable. An owner could make an argument that a total holiday decorating ban impedes upon his or her freedom of speech and freedom of religion. While owners agree to abide by the governing documents and Rules and Regulations when purchasing in an association, and these are private communities we are discussing so the ability to tie a board decision to the "State Action" needed for a constitutional challenge is nebulous at best, those restrictions still must be reasonable. If nothing else, most association members enjoy some decorations at the various holidays and a total ban may not be a terribly popular decision.

What are the issues involved with the association putting up lights/decorations on the common areas?

A condominium association's decision to place holiday decorations upon the common areas could be challenged by some owners as a material alteration even though the display is only temporary in nature. Although the duration of the display is likely to be much shorter than the challenge, the possibility of a challenge does exist and someone may see fit to take up that fight to prevent similar alterations in the future. Another pertinent question is whether the costs of a community holiday display is a proper common expense?

This is another area that is definitely up for debate. In Florida, we have had associations that were challenged for spending association funds to provide refreshments at meetings, and the Division of Florida Condominiums took the position that if such expenses were not authorized in the Declaration, then they were not proper common expenses. While most people enjoy these displays, and would not be likely to challenge the expense if reasonable, boards must still realize that this is a possibility especially in the current economic environment when so many associations are struggling. Having fewer owners to foot the bill for a lavish lighting display in the community might be the proverbial straw that breaks the camel's back. The bottom line is that if such expenditures are not authorized in the Declaration, then they are vulnerable to a challenge as being improper.

Lastly, with any community holiday display, thought should be given to community diversity and the fact that many members of the association may celebrate a variety of holidays. It is for this reason that many communities choose to use holiday neutral light displays as opposed to erecting religious symbols associated with particular holidays.

How to get around these hurdles if your association wants to show its festive side for the holidays?

- Seek membership approval to amend your declaration to provide that holiday decorating is a proper common expense. If you want to increase the likelihood of getting such an amendment passed, put a percentage cap based on the total budget of what can be spent in this endeavor lest Joe Homeowner worry that the community overspends in this area. The goal is to keep the expense reasonable.

- Get the members involved in donating items to decorate the common areas. Word of caution: this can get sticky as folks often have different ideas about what is acceptable holiday decor.

- Set reasonable rules for owners to take down their decorations within a reasonable time after a holiday passes and ensure that the association does the same for any items it installs on the common areas. Most folks don't want to be looking at Fall Harvest displays in April. What is a reasonable time? It will vary depending on whom you ask but two weeks seems to be enough time to take your pumpkins and snowmen down.

- Set reasonable rules regarding a display's size and scope and ensure that both owners and the association comply with those rules when planning their holiday displays. The goal is to prevent any display from becoming a source of nuisance in the community due to excessive noise, lights and probably more significantly, traffic issues. In communities without a means of controlling visitor access, this can become a problem when homeowner displays are advertised to the general public. It would be reasonable to restrict any decorations that impede access on catwalks or HOA streets or otherwise create fire hazards.

Common sense, reasonableness and the definition of “excessive” seem to be the operative words/themes when creating a sound policy on personal and community holiday displays.

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