As we venture into the darker months of Winter, we approach a traditionally well-lit holiday season. Many homeowners have grand plans to decorate their doors, windows, and yards. Extravagant lighting displays and inflatable characters are easily accessible and are becoming more popular. However, as much as some homeowners might like to replicate National Lampoon’s Christmas decorations, their neighbors may not appreciate the glare from 25,000 bulbs.
In our work with community associations, we find that two questions are frequently asked regarding holiday decorations: (1) can a community association regulate holiday decorations, and (2) can an association be held responsible for discriminatory holiday decoration regulations. Simply put, the answer to both questions is yes.
One of the primary roles of a community association is to ensure the community remains attractive and uniform. As such, it is likely that if a home is part of a community association, the association has authority to regulate the exterior appearance of the community – a quick review of the community association’s declaration will confirm whether such authority exists. In Minnesota, all community associations that are subject to the Minnesota Common Interest Ownership Act, commonly referred to as MCIOA, have authority to regulate the exterior appearance of the community. Minn. Stat. 515B.3-102(a)(1)(v).
In practice, as long as the association has authority to regulate the exterior appearance of the community, the association may adopt reasonable rules to regulate holiday decorations that are visible from the exterior of a unit.
Depending on the language and enforcement of such rules, a community association can be held responsible for discriminatory enforcement of holiday decorations. While freedom of religion and expression is protected by the US Constitution under the First Amendment, First Amendment freedoms do not generally apply to community association regulations. However, the Fair Housing Act (the “FHA”), which prohibits housing providers (including community associations) from discriminating against any person on the basis of race, color, religion, sex, familial status, or national origin, offers similar protections to homeowners as the First Amendment.
Under the FHA, even a “facially neutral” (i.e., doesn’t expressly favor or disfavor any religion) rule can violate the FHA if there is evidence that the rule was passed with an underlying intent to discriminate (e.g., selective enforcement against one religious group) or if the rule results in a disparate impact on a religious group that effectively amounts to discrimination.
“Facially neutral,” “underlying intent,” and “disparate impact” are all legal terms that represent a series of legal tests used to determine discrimination. Rather than crafting rules to push the envelope, attorneys at SJJ recommend avoiding even the appearance of discrimination by adopting a generic set of holiday decoration rules that apply equally to all holidays and that does not list specific holidays. Generic rules, paired with equal enforcement against all homeowners, regardless of the subject matter of the decorations, help shield associations from claims of discrimination.
The attorneys at Smith Jadin Johnson, PLLC have extensive experience working with community associations and common interest communities to ensure their governing documents are practical and enforceable. If you or your association have any questions about potentially prohibited holiday decorations or questionable rules, covenants, or policies, please contact our office today.