By Damien Bielli, Vial Fotheringham, LLP
The summer has wound down, kids are back in school, and associations head full-steam toward year-end. As fall and winter quickly descend, associations begin a period of increased holiday decorating and all the joyful, wonderful, and sometimes painful experiences that brings.
Generally, associations are permitted to create rules and regulations governing holiday decorations. Each association must look to its governing documents for the authority to promulgate rules and regulations of any kind, including the limitation or prohibition of decorations. The Colorado Common Interest Ownership Act (CCIOA) provides that an association’s Declaration must contain any restriction on the use or occupancy of any unit. C.R.S. § 38-33.3-205(1)(L). The authority of the association to restrict exterior improvements, even temporary ones, can usually be found within the portion of the Declaration containing the architectural restrictions/limitations of units. Alternatively, many associations also rely on catch-all language governing the appearance of the exterior of the home (i.e. unsightly, clean, neat, and attractive). It is through its authority in the Declaration that an association may choose to limit, expand, or restrict altogether, holiday decorations.
In most communities, the Declaration provides the association the authority to regulate the exterior appearance of a single-family home, condo, or townhome unit. Within that authority generally rests the power of the association to regulate or outright ban any non-conforming exterior alteration or unsightly item, including lights and decorations. This is more easily regulated in condominiums than townhomes or single-family homes as most area in condominium communities is considered common elements and under the exclusive control of the association.
Generally, associations can temporarily permit a variance to these rules by allowing holiday decorations during certain periods of time. Usually, that variance is a period of time before and after a holiday when decorations may be put up and must be taken down. This should be memorialized in a policy with clear and concise rules and guidelines for decorations and the time limitations those decorations may be kept, bearing in mind that the holiday decoration policy will extend to all holidays throughout the year.
Complications may arise with an overly general approach rather than a well thought-out and specific holiday decoration policy. Decorations can become so grand that they create a nuisance to neighbors. We have all seen private displays which rival the biggest and best commercial designs. We have also witnessed displays that draw public attention and increase traffic in a neighborhood from the viewing public. An association which has a detailed and comprehensive decoration policy can limit these potential problems.
In addition, the FHA plays a role in an association’s holiday decoration policy. First, any decorations on common area used by the association should be non-religious. General holiday decorations including wreaths and ribbons are the safest, but even Santa Claus and reindeer are acceptable. The FHA is focused on preventing discrimination and an association that appears to favor one religious holiday over another could be viewed as discriminating and face legal consequences. Second, rules which permit decorations around certain religious holidays and not others could be viewed as discriminatory. For example, if decorations are only permitted from the 24th of December to the 26thth of December, this would likely exclude several religious holidays which may subject the association to liability.
An association needs to be reasonable and uniform in its application of permissions and restrictions of holiday decorations. Clear and concise rules which outline the time frame before and after a holiday, as well as reasonable limitations to size and scope of decorations, will aid the association in limiting conflict within the community.
Damien Bielli is a Partner for the Colorado branch of Vial Fotheringham LLP. His practice emphasis is in homeowner and condominium associations.