Christmas decorations & lawsuits
HOA (condo) law makes divorce law look amicable.
‘One jackass ruins it’: Holiday decor fuels HOA fights
'Tis the season for condo owners to gripe about holiday decor and threaten to sue. Bah humbug, you’ve been served.
The Boston Globe
By Megan Johnson
November 20, 2024
There are certain signs that the holidays are in full swing.
The garlands will be hung, the halls will be decked, and attorney Mark S. Einhorn will field calls from homeowners associations facing lawsuit threats over holiday decor.
“We deal with it every year,” said Einhorn, a condominium and real estate lawyer with Marcus, Errico, Emmer & Brooks in Braintree. “It comes up often enough where we talk about it this time of year pretty much every year.”
Battles over festive holiday decorations are par for the course in cities like Boston. Take a browse through the 311 website, where residents report non-emergency issues, and you’ll find complaints ranging from “illegal religious decorations” (a Christmas ornament hung from a city-owned tree) to “gruesome Halloween decorations right next to an elementary school.” But in a homeowners association, which is technically a private organization that governs a residential community, the holidays can make things a bit Grinchy.
While these cases are plentiful, they generally don’t make it to court, Einhorn said.
“But the threat of being taken to court probably happens all the time,” he added. “That’s the typical reaction: ‘I’m going to sue you.’ It tends to be because it’s near and dear to people’s hearts. You’re dealing with people’s homes.”
Battles over holiday decor can and do wind up in court. In 2017, Jeremy and Kristy Morris sued their Idaho homeowners association, claiming religious discrimination because the HOA prevented them from conducting a Christmas program that featured thousands of lights, costumed characters like Santa Claus and the Grinch, and a live nativity that even had a camel. The Morrises said neighbors harassed and threatened them over the issue. They won the original case and were awarded damages, but the Morrises were forced to pay the HOA’s legal bills. The district court entered a permanent injunction against future productions of said Christmas program that violate the HOA’s rules. The issue is still being debated seven years later.
“HOA law makes divorce law look amicable,” said Jason G. Mahoney, an attorney and real estate broker in Boston. “Sometimes people can get divorced and be somewhat mature about it. But in an HOA, it seems like they’re always looking to settle these small scores and grievances from years past, and now they have an opportunity to exact revenge.”
A sukkah
One of the most complex aspects of governing holiday decor within an HOA is that it touches upon freedom of religion. Consider the Jewish holiday of Sukkot, a weeklong holiday that commemorates the sheltering of the Israelites in the wilderness. To celebrate, worshipers build a small hut-like structure called a sukkah. Demands for their removal have landed HOAs in court. Such was the case in which Robert and Bonnie Greenberg of New York sued their HOA after it denied their request to build one on their balcony. They won and the fines were dropped.
HOA (condo) law makes divorce law look amicable
Jason G. Mahoney, attorney
Many HOAs will simply outlaw signage of any kind to safeguard themselves from litigation. By not specifying what type of signage is involved, whether holiday or political, they circumnavigate any problems.
Some interpret this as a First Amendment violation, however, as was the case in Belchertown in 2020, when Margery Jess filed a lawsuit against her complex after the trustees ordered her to remove a “Black Lives Matter” sign she put in the garden bed in the common area outside her unit. She won that suit the following January, when Hampshire Superior Court ordered the complex to allow residents to post signs at their units, citing the free speech provision of the state constitution and the fact that residents had been allowed to display “signs in the common areas near the front of their units expressing their views, including support for military service members, frontline medical workers, and graduating high school seniors” without rebuke.
“From a legal perspective, the best thing to do is to have zero decorations. Whether it’s their decorations, political signs, personal property, or whatever, it shouldn’t be in the common area,” said Einhorn, who notes that this tends to upset many residents who want to get festive during the holiday season. “The problem with that is no one wants to do that. But if you open the door to allowing holiday decorations, someone wants to know why they can’t put up a political sign. Then you’re regulating content. One side or the other is going to think it’s unfair.”
Experts agree that the battles that go on within homeowners associations over holiday decor are often rooted in unrelated issues. But when two residents already dislike each other, every small action gets brought into the mix, and that’s how one man’s refusal to remove the rhinestone-encrusted reindeer on his balcony lands the HOA in court.
One jackass ruins it for all
“It’s very, very simple,” said Tim Paoli, owner of IRM Independent Realty Management in Boston. “One jackass ruins it for all. Five to 10 percent of every association has the crazy factor. Those are the individuals who ruin it for everybody.”
If you’re wondering what the rules are regarding decor in your building, consult your condo docs or the building’s handbook, Paoli said. In most cases, the terminology will be intentionally general, therefore removing the need to specify whether the rules are referring to holiday or political content.
“If you want to go crazy in your home, go crazy in your home. But in the common areas, you don’t own them. The condominium documents will always state, in some capacity, ‘nothing is to be stored in the common area,’” Paoli explained. “It’s the safest thing.”
Some management companies may recommend reporting decor violations, but it’s important to keep in mind that you have to live next to these people. Reporting the holiday decor that adorns their window, balcony, or unit’s door may find you in a verbal brawl at the next HOA meeting
The expensive legal letter from the condo corporation’s lawyer can cause so much pain, expense and hatred. The existing directors may lose their positions in future elections and the owners that they harassed in the past may then control the board.
Then comes payback time.
A condominium lawyer that I respect, told me that when the board needs compliance from an owner, she telephones the owner and calmly explains the board’s position and why the owner needs to comply. At first, the owner is usually hostile but as the lawyer calmly explains the bylaws and rules and the huge costs that a lawsuit would entail, the owner usually calms down and they come to an agreement.
The lawyer explained that she does not make as much money as she could by doing this, but it is important to get compliance without the hatred. She laughed and said that maybe she should be a mediator.