Regulating Holiday Displays
By Michael A. Sottolano
Regulating holiday displays can be a tricky topic and association boards of directors are well advised to keep certain things in mind when dealing with it. With the holiday season upon us now is a great time to brush up on some important principles when it comes to adopting and enforcing rules regulating the display of holiday lighting and decorations.
First, it’s important to remember that associations can generally prohibit and regulate decoration of common areas and common elements. The ability, however, for an association to regulate changes to a unit or lot, even of temporary nature such as the short-term display of holiday lights and decorations, must be based in authority provided by the association’s recorded restrictive covenants (which are, in the context of property or homeowners associations, the recorded declaration, deed of restrictions, CC&Rs, etc., and, in regards to condominiums, the recorded condominium instruments) or by a rule or regulation duly adopted pursuant to authority provided by the covenants or applicable law.
Many sets of restrictive covenants will prohibit a lot or unit from being used for certain activities or require approval by the board of directors (or a committee) before exterior changes may be made. In such situations the association may possess adequate authority to regulate holiday decorative displays. Consider, however, that the specific language of the association’s covenants is important! As the Virginia Supreme Court made clear in its 2019 opinion in the case of Sainani v. Belmont Glen Homeowners Ass’n, Inc., 831 S.E.2d 662, 666 (2019). In the Sainani case, the owners had displayed on their lot lighting in celebration of various Hindu, Sindhi and Sikh religious holidays at times and in areas outside of those permitted by the rules regarding holiday decorations adopted by the association’s board of directors. As a result, the board took corrective action against the owners, including levying violation charges and, ultimately, filing a lawsuit against them in the Loudoun County Circuit Court. While the Circuit Court in this instance agreed with the association that, because there was authority in the association’s restrictive covenants to adopt architectural standards applicable to lots, the board had the ability to adopt rules regulating the display of holiday lighting and decorations and enforce violations of such rules against the owners. On appeal of this decision by the owners, however, the Virginia Supreme Court found what it considered to be more specific and controlling language in the association’s covenants that limited the board’s ability to regulate external lighting on a lot only to the extent that the lighting had an “adverse visual impact to adjacent lots”. Based on this language, the Virginia Supreme Court determined that the holiday display rules adopted by the board in this instance were overbroad and sought to regulate issues involving the lighting display on the owners’ lot that went beyond the authority provided by the association’s restrictive covenants. As a result, the Virginia Supreme Court reversed the Circuit Court’s decision (which had awarded to the association injunctive relief, violation charges, and attorneys’ fees) and remanded the case back to the Circuit Court for further proceedings consistent with its opinion.
The Sainani decision relates to a specific set of facts and unique language in a community’s restrictive covenants; however, it is a good reminder to all association board of directors that if it attempts to stretch its rulemaking authority regulating holiday displays on lots or units beyond that which is provided in the recorded covenants that a Virginia court is unlikely to be supportive of such efforts.
Boards should also consider, if adequate authority for the association to regulate holiday displays on lots or units exists, rather than prohibit decorating lots or units (a decision which may be unpopular in the community) or require that all displays be approved on a case-by-case basis (which is likely to be an administrative nightmare), that a better idea may be for the board to adopt reasonable rules and guidelines which permit the short-term installation of holiday decorations that adhere to certain parameters. When developing holiday decorating rules, be sensitive to reducing potential health and safety issues and generating reasonable rules that address the issues which are of concern to the community. In particular, some issues to consider when generating holiday decorating rules:
- Allowing a reasonable time period, prior to and following the holiday, during which decorations may be installed and removed.
- Addressing the hours during which holiday lights may be left on. An example of a possible reasonable time period for such activity would be from sundown (or earlier) until 10PM.
- Adopting reasonable restrictions on size, style, material or number of decorations (depending on the size of lots/units and any other special considerations of the community).
If in doubt regarding your association’s ability to regulate holiday displays in the community this holiday season, check with your association’s legal counsel to confirm the extent of your board’s rulemaking authority and that the desired regulations do not conflict with your association’s unique set of recorded covenants or applicable law.