“Holiday Decor and Winter Prep” – KSN Attorneys David Savitt and Savannah Loftis discuss the rules and regulations that condo and HOA community associations can enforce regarding holiday décor. Additionally, they review best practices to prepare your association for the winter months. (34 mins.)

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Episode Transcription

Nikki: You’re listening to the KSN podcast and today we’re talking about holiday decor and winter prep. Welcome to the KSN podcast where you’ll hear from KSN attorneys as they share their experience and insight on legal issues surrounding community associations, collections, property tax appeals, and landlord tenant law. I’m Nikki and today we’re joined by two KSN attorneys, David Savitt and Savannah Loftis. Both David and Savannah practice condominium, townhome and homeowner association law. David practices in Illinois and Savannah practices in Indiana. Please note that this is a previous webinar recorded on September 14th, 2022.

David: Good evening, everyone. My name is David Savitt. I’m a principal at KSN. I’m joined by Savannah Loftis tonight and we’re here to talk about holiday decorations and winter prep. So, in terms of holiday decor generally speaking residents are often free to decorate the interior of their homes as they please. However, many associations have drafted and have implemented by rule policies that relate to the decorating of common elements and by common elements or common areas depending on whether your association is a condominium or not. I’m generally talking about our hallways, patios, lawns, lobbies, portions of the building that are outside the individual unit. Now, the vast majority of declaration and bylaws restrict an owner’s ability to make additions and modifications to the exterior of a unit or the common elements without that prior written approval of the board and the general concept there is, the board has the control over the exterior appearance of the community and that is intended to promote harmony and beautification of the property.

However, it does not mean that the board is entitled to prohibit all expression of an individual’s religious beliefs and as I said earlier, the board’s job here is to balance that external harmony and uniformity with the ability of the owners to freely express their religion through something like decorations. In fact, the condominium property act section 18.4H is instructive here on that in terms of the Illinois condominium property act. Section 18.4h generally talks about the ability of the board to adopt rules and regulations governing the property. However, there’s language that’s been added that says that no rule or regulation may impair any rights guaranteed by the first amendment up to the constitution of the United States, or section four of article one of the Illinois constitution, including but not limited to the free exercise of religion, nor may any rules or regulations conflict with the provisions of the act or the condominium insurance and then importantly, no rule or regulations shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front door area of condominium unit.

So again, this is applying to your [Inaudible:03:15], things like that that are religious expressions. While the board has that ability to regulate the exterior appearance of the building, there are accommodations that need to be made that are built statutorily, as you can see in the condo act to protect an owner’s right to freely express their religion. Interestingly enough, there is no similar provision in the other big statute in terms of Illinois associations that governs– is the common interest community association act doesn’t have a similar provision on that front.

Savannah: So, in Indiana, we do things just a little bit different when you’re looking at your rules, regulations and how your HOAs and condo associations govern. We do have the condominium act for Indiana. It’s also previously known as the horizontal property regime because our condos here tend to be one story and quite long. We don’t have as many high rises here. So, it used to be called the horizontal property regime and we also have the Indiana homeowners act which applies to all associations after 2009. With a caveat, there are certain provisions of this act that are mandatory such as the grievance resolution process. So, if you were to come into an issue with a holiday decoration or a violation of the rules and regs related to any type of decorations coming up for Halloween or Christmas that’s going to be governed by the grievance resolution process regardless of if you were created prior to 2009. There’s also the same provision for the grievance resolution process incorporated into the condo acts. When you’re looking at how your association is run in Indiana, it really is like a [Inaudible:05:09] patchwork of multitude of acts that you have to look at, plus your recorded documents to try and piece out what authority it is that you need to rely on because there are certain provisions of the HOA act that could Trump your legal docs, or there’s a provision in the nonprofit act that might Trump your bylaws.

So, if you have any question regarding these three acts, and if this applies to your association or understanding what to do if there’s a conflict between your legal doc and these acts, it’s always best to reach out to counsel, but this would be where you need to look if you were ever to run into issues with violations of your decorations or wanting to know what rules and regulations you can or cannot pass.

David: So, in terms of rules and regulations it’s generally accepted in terms of our review of the case law and the statutory guidance that a total ban on all decorations would likely not be considered reasonable and probably wouldn’t stand if challenged. However, that does not mean that an association cannot restrict or place limitations on an owner’s ability to decorate portions of the common elements or outside of their unit during the holiday season. So, as a best practice, what we recommend is that a board focus its restrictions on what are called time, place and manner and what do I mean by that? So, instead of a blanket ban on holiday decorations, one might adopt a rule that says holiday decorations are permitted maybe 30 days before or after a holiday. For example, place decorations are permitted so long as they’re displayed in certain locations, not hanging from a balcony or areas where that may be unsafe or propose a safety risk or manner that decorations have to be affixed in a certain way to make sure that they are safe.

So, the example that I always think of and that we see quite a bit are decorations hanging off of a balcony in a Highrise building in Chicago obviously there are significant concerns that might exist where you have decorations hanging off or certain decorations hanging off a balcony; stories above, people walking below or that might cause damage to other units. So, these are ways that you can implement reasonable regulations by focusing on time, place and manner, rather than a blanket ban on those declarations and therefore protect an owner’s abilities to freely express their religion. And so again, what I was talking about with safety, another couple examples here, like blocking a fire escape, overloading electrical circuits, items hanging from balconies. The point there being that the board still has that ability, even with the protections under the freedom of expression to tell people, hey, look, we have to protect the building, we’re not going to give you carp blanche to put up any kind of decorations that might affect the structure of the building or might affect owner’s units, generally speaking. Of course, with damage heavy objects is always the biggest concern there or things that might fall off or are not properly affixed. An interesting one comes up with disturbances as well. Most declarations, at least in Illinois, do contain some general language of obnoxious and offensive activity.

So, decorations that are going to cause disturbances or affect people’s ability to enjoy their units. Certainly, there are lines there that the board is able to enforce and make sure that while permitting people to express their religion and enjoy the holiday season that they’re not doing so in a way that’s affecting other people from enjoying their units as well. And of course, any local ordinances always when we talk about association actions, anything that violates a local law or local ordinance whether that be from time or when those declarations may be permitted as well, anything that we implement as a board has to comply with those ordinances also.

Savannah: So, another great way to shelter the board and their decisions with how you’re regulating holiday decorations in making religious considerations is to draft a holiday decoration policy to apply throughout the association. This would help minimize discrimination. It also helps boards when they’re faced with homeowners coming to them with some type of a reason for why the rules should be bent for what they’re wanting to do with their property, gives the board a very easy out with saying I understand what you’re saying, and that you really want to do this. However, this is just a policy we have and we have to apply it to everyone and that helps keep the conversation short. It helps the board stay uniform in everything that they’re enforcing. Courts have found that it’s proper for a government entity to acknowledge religious holidays. So, as long as they’re not creating an impression or endorsement by that entity, you’re going to be fine. This can be done through the display of religious scenes by the side or other non-religious or secular symbols, such as reindeer, candy cane. So, you can have this permitted in your association, but the best practice is to include–

This type of policy, it gives everybody their kind of parameters, their constraints, they know on the front end before they start doing these types of decorations what is, or is not permitted. I think, where this is going to come possibly outside of the religious aspect, but with your holiday decorating, getting into Halloween some people go all out with their decorations. We’ve seen on many news articles or stories on Reddit, TikTok Facebook some people who go extremely crazy with their holiday decorating for Halloween, but it’s overly gory, over the top. Someone thinks there’s an actual dead body in the yard, the police are getting called. So, making sure it letting people have fun, but within reason and not causing a disturbance to anybody else in your association.

David: Right. And I think, you know, just to give you all sort of a real-world example as well. In terms of endorsement, that is always a concern that comes up quite a bit during the holiday season, in that, we may see a situation where the board unintentionally favors one holiday over another and usually with the Christmas and Hanukkah season usually overlapping or very close to one another the traditional example that I have seen is a situation where a board may put out Christmas decorations and take up most of the lobby doing so and they’re not being any room for someone else who ultimately wants to put up a menorah or something for the Hanukkah holiday as well. So, the issue there and the things that we’ve council clients that get into that kind of situation where somebody does make a request to put up decorations for a different holiday that isn’t sort of predominant one for members of the association is to make sure that you are creating an avenue for those that do want to put up decorations related to their holiday so that you’re not unintentionally endorsing one holiday over the other. By doing so that can open up a possibility of a discrimination complaint if the board is seen as picking one holiday over the other.

And so, when it comes to sort of the practical concerns, how do we make sure that the enforcement of our policy and how do we make sure that owners follow this and are aware of it during the holiday season, notice is always a good thing. We’re right now in September heading towards that holiday season, making sure that owners are aware, especially new owners of what the policies are, what the rules are, that’s always going to be a good thing. That way you don’t have the argument that some people make where they say, oh, I didn’t know there were rules, or the classic argument that many people make when they buy into an association that they didn’t realize there were covenants in the first place. If this is a particular issue that’s important to the board, making sure that owners are aware and all residents are aware of what the restrictions are well ahead of time is definitely a best practice.

Making sure that owners also understand what the expectations of the board are too. I mean, things that haven’t come up before encouraging owners to speak to the board ahead of time and if they plan on putting up some elaborate decorations, making sure that the board is aware, encouraging people to bring those ideas to the board ahead of time so that they can be approved rather than having them installed or partially installed and then the board coming in trying to enforce it is always a better thing. One interesting idea that many associations I’ve worked with have done and is a way to generate owner participation is the use of committees and commissions. So, by law, a commission is a group of owners or residents that advise the board on a particular issue. A committee is a delegation of the board’s authority on a particular topic. So many, many associations steer clear of the committees per se, and go more for the commission approach but this is a way of getting owners involved ahead of time in sort of advising the board what the best practices for this particular holiday season will be. What kind of things maybe should be permitted, what shouldn’t be permitted when the decorations will be up this year, do we want to change our policy? Things like that. My view is generally that it’s always best to try to get as many people involved in the process as possible, and certainly in an advisory capacity. That way you’re hearing from the majority of your ownership and if more people are heard, it tends to be that more people will follow sort of the rules there.

Also being open. I think that when it comes to exemptions, a lot of boards that we run into, the ones that tend to get in trouble tend to be very rigid. Making sure that you do have sort of that common sense approach where you’ve got legitimate cases where maybe decorations might be appropriate or maybe appropriate not to apply that power in terms of uniformity and governance over the exterior in such a rigid fashion. So, being open to being able to provide exemptions and in a way, that’s protected and obviously contacting council and making sure that the proper precautions are put into place to do so is a good thing. And again, this kind of goes along with the notice, but by making sure that everybody has a copy of the Association’s rule. I can’t tell you how many times we get contacted and people say, I never even knew there were rules, or I have no way of accessing the rules, I have no way of complying with them because I’ve never received anything. So, making sure that those copies are out there or available to residents to consult is a great way of making sure that everyone’s going to sort of fall in line as we get to the holiday season here.

 Savannah: So along with managing expectations, it is much easier doing all these things we’ve mentioned at the front of the presentation to kind of set yourself up for preventing violations or preventing disputes regarding what you can and can’t do with your holiday decorations and what you can and can’t do with your property. It’s so much easier to prevent something on the forefront than to address it once it’s already there. So, disputes arise regarding religious decoration, the board should immediately reach out to council to assess was their action proper regarding where that’s placed? Is the restriction neutral to all religions? Is it biased toward a particular religion? Are the symbols or decorations at issue secular or part of a religious practice? This might make you have to look back to the fair housing act which could potentially trump your legal doc in any rules and regulations you created. What was the practice for prior board members? Going on with what David had just said, so many people buy into these neighborhoods when you get to closing, it’s a shuffle of paper. You might have gotten your covenants; you might not have but that does give you the constructive notice of all of these covenants and rules and that constructive knowledge is enough to bind you by all of those rules.

When you’re even looking at case law, interpreting the effect of covenants, they’re read in a strong presumption of validity because property ownership is a bundle of sticks and you, essentially by buying into an association, have contracted away part of your right to freely control that land, because you get a bunch of benefits, you get common areas taken care of, you have rules so your neighbors maintain their property values, it does protect your property values and help your own property appreciate. So that’s just something to consider with looking at what your community knows on the forefront and then assessing violations once they appear or looking at a particular dispute, how well is it known? Why did you regulate it the way you did? And is there some type of federal or local state law that maybe the board should consider and do an accommodation or permit? That doesn’t mean you’re obligated to if the board does believe that there is particular declaration that is unreasonable or causes safety concern like we mentioned earlier, then you can stand by your position and contact legal counsel for how to move forward and address the violation or address any threatened litigation if a homeowner thinks that this is a hill that they will die on.

David: Right. And let me just touch on even one point more specifically too with the past practice of the board and this applies even outside the context of holiday decorations, but just generally speaking, but in this particular context, it’s important as well. It’s always important that the board try to be consistent when it’s enforcing its governing documents. Consistency is the goal. Now, the problem for boards is that the boards tend to roll over, board members roll over and sometimes practices are lost when the board members change, when maybe you have a long-standing board member who’s been around forever, and they’ve done things a certain way, and now new board members come in with new ideas. The key there is to make sure that when you do have policies like policies related to religious decorations, holiday decorations, things like that, that it’s reduced to writing. That’s the way that you’re going to be consistent because of the fact that people are going to roll over people, institutional knowledge may come off the board or may move. So, making sure that we have that written policy is key, and that’s something that we are experts in, we are experts in helping craft those policies and taking those ideas and making sure they reduce the writing so that they’re recorded in [Inaudible:20:42] going forward and you don’t have an issue of inconsistent enforcement. That’s always something that owners look to when they want to complain to say, well, Johnny Smith was given the opportunity to do those three years ago, why am I being denied now?

Savannah: From time-to-time disputes are going to arise this might be between the board trying to take care of a violation or even a homeowner to homeowner trying to drag the board in to get involved. In Indiana, we do have the homeowner’s association act grievance resolution process that I mentioned at the beginning, which is also incorporated in the Indiana condo act. If there’s a violation on a property, you have mandatory notices that you are going to have to issue to the owner. There’re specific timing requirements. You have to float sections of your declaration. You have to tell the homeowner what the violation is, the requested compliance. They have an opportunity to meet with the board to discuss the violation. So, all in this process can take over a month before you can even go into court to seek a legal remedy to address a violation in which holiday decorations are seasonal. We have individuals who fail to remove their lights or don’t take them. Decorations down timely. So that would be a process you have to exhaust in Indiana. If there’s something overly egregious though, the only way that you can bypass this grievance resolution process is something that is causing a severe safety concern, or someone has a display up on the property that is discriminating against a group or making some type of nuisance it’s obscene, it’s obnoxious. If it rises to that level, you’re going to have to pony up a bit of money to hire an attorney to go after the violations through a temporary protective order and an emergency injunctive relief.

So, when you’re kind of looking at what’s going on with the property and figuring out, do I need to go through this exhaustive process, or is this something that rises to the level where we can go to court now to get it addressed? That’s going to be balancing the board and what they believe is a nuisance or causing an issue. If it’s something that isn’t overly egregious, I would recommend to just exhaust your grievance resolution process. We can go onto the next.

David: Yeah. And just really quick for those from Illinois, we don’t have that specific exhaustion requirement but I will say it is generally best practice if you can to exhaust your internal remedies, meaning fines opportunity for a hearing working with the owner, sort of internally before you go to the courts for remedy and except for an emergency. Generally speaking, that plays better in court where you can do that. That’s just good practice, but it’s not necessarily required.

Savannah: With the injunctive release– an injunction is essentially a court order advising somebody to stop doing something with their property and ordering them to either remove certain items or perform certain acts to the property. It’s issued by a judge and in emergency cases, they can do a temporary restraining order essentially requiring the party to, for example, if somebody had basically, like I mentioned before, it looks like there’s a dead body, the children are scared it’s this gigantic obscene construction on their property that looks like a holiday haunted house that you can walk through or I’ve even had a situation when I first started practicing, there was a homeowner who had hide in the bushes and rev a chainsaw, like when you go through haunted corn mazes and it was scaring children and causing a problem and it was loud. The association felt that that was something that was rising to the level of needing a temporary injunction to get that person to stop doing that. So, this is just one of the tools that you have for when it does appear to be significantly bad, and the board needs to take quick action and really doesn’t have the time, or doesn’t want to risk waiting, given the level of safety concerns going through the prior process as we mentioned. So, just something to keep in your back pocket for when something is so over the top or so dangerous, or does specifically target a certain group or makes an incorrect or discriminatory statement that’s harmful to possibly other residents in your community.

David: That’s going to take us to the second part of our presentation tonight and what we’re going to talk about now, sort of shifting gears a little bit is to prep for winter and I think that’s probably a pretty unfortunate topic that nobody wants to acknowledge that the summer is coming to a close, but with winter around the corner, the question that always comes up is snow removal and sort of how we prepare for that. And obviously just as a business perspective, it always makes sense to get a snow removal company involved that’s got a good reputation, somebody that’s going to be prompt and act appropriately and you want to consider the experience that each company offers just as sort of a general guideline there. Now, this is a concept that is so important and it’s not just even in this context of winter prep, but generally speaking, but specifically with regard to winter prep, it’s always important to have the Association’s attorney review a contract prior to its execution. We have clients come to us and give us a contract that’s fully signed and execute it and ask us to negotiate it and I’m sure most people know once you sign a contract, you’ve significantly changed our ability to negotiate and the leverage that you have.

So, getting that contract to us before execution is important, and certainly any contract of significance is one that we would recommend you have attorneys review and by that, I mean, contracts with multi-year terms, automatic renewal languages, significant amounts of money concerns about liability, things like that. You definitely want to bring to council to have a look at and what do we look for? So, some of the things that we would look for when we take a look at a contract, does it have a specific start and end date? Many times, with snow removal companies’ contracts, service will start on a particular day and will end on a particular day each season. That’s important. We want to make sure we understand and everybody’s clear about when the service begins. Does it identify the areas that are going to be plowed, shoveled or blown? It can have a map which is a great thing, or even just a description of the area, making sure that meets your expectations as a board in terms of what service you’re getting. Now this one is very interesting is when snow should be removed from your association. I have seen contracts in my practice that will allow for snow removal services, but only when accumulation is to a certain degree, meaning you get three inches or four inches, but anything less than that, you don’t get a service.

Many times, associations don’t realize that it’s in the contract and get very frustrated when no one’s come out to plow their property and they realize, oh, we don’t have anybody coming unless it’s more than three or four inches. Very important to know what that threshold is in your contract. In terms of insurance, make sure you’re named as an additional insured on the contractor’s insurance policy. This is going to come up if there’s damage, things like that that we need to be able to have that recourse with the contractor. It’s important to make sure that they’re insured as well as licensed before they provide services at your property. That’s going to protect you there. Keeping a snow log; that sort of ties into what I was talking about earlier with regard to knowing what the threshold is for what you’re supposed to receive service. Many times, there can be a dispute about how much snow actually fell. So, making sure that those records are in place so that you’re, again, getting the services that you want and you know exactly what’s in that contract. Availability is an important one. Again, making sure that you have the ability– you know what you’re getting, you’re having the ability to contact the contractor. If there’s an emergency, if there’s a need to get somebody out if there’s a big snowstorm overnight, do you have that level of service that you think you are getting when you bring this contract up for review and property damage is a big one.

So many times, contractors will try when they draft contracts to disclaim as much responsibility as possible. They will try to limit their exposure. When we review a contract, obviously we have the association’s interest in mind and we will certainly try to expand that so that you have as many rights as possible. So, it’s important to remember that when you’re looking at a base contract that somebody else has drafted, you can almost guarantee that there’s going to be as many loopholes and outs for that contractor as possible to try to avoid responsibility to address damage, even if they’ve caused it. So, we want to make sure that we’ve got as broad a base and as concrete remedies as possible so that you can get somebody back out there if there is damage. In terms of liability really quick, just to kind of go through that real quick. Sosnow and ice can expose the association to a great deal of liability. Slips and falls are the most common type of occurrence that we see and that’s when we have that neglected or natural accumulation of snow and ice. And so, we always want to be mindful that a lawsuit can originate from that or even property damage whether that’s caused by the stone removal company or by the association, that can expose the association liability.

So, we want to make sure that from a liability perspective, the association’s aware of what its general liability insurance policy says and that it has the appropriate coverages to make sure that it’s protected from any kind of suits that arise for that and on that front, you really want to speak to your broker or your agent about what your insurance policy says, making sure you’ve got those coverages for slip and fall issues, for property damage. Those are, at least in my practice, have been the two most common winter types of lawsuits that arise and again sort of what I was touching on earlier your snow removal contractor, making sure that they’ve got the correct type and amount of liability insurance as well for kind of the opposite reason, making sure that we’ve got that ability to go after them and got proper recourse if there is a significant issue. Thank you very much for attending. See you soon. Take care.

Savannah: Have a great evening.

Nikki: That was KSN attorneys, David Savitt and Savannah Loftis. They both practice in the area of condominium, townhome and homeowner association law. David practices in Illinois and Savannah practices law in Indiana. KSN is an experienced legal resource, ready to provide you with quality advice and exceptional service. We look forward to demonstrating how we’ve earned the trust of thousands of clients over the past 35 years. If you’d like to reach David Savannah or anyone of KSN’s experienced attorneys, please call 855-537-0500. You can also visit ksnlaw.com and complete the contact form to send us a message. Thanks for listening.

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Please note the material contained on the KSN Podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN Podcast. You should not act on the information discussed on the KSN Podcast without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information on The KSN podcast, the law can change quickly. Accordingly, please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the podcast, or the performance of the podcast generally. The KSN Podcast may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.