When an association board asks a homeowner to remove a cross display in an HOA community during the holidays, is the association violating any laws? Can an HOA really pick and choose which holiday decorations residents can display?
Can Boards Ask Homeowners to Remove a Cross in HOA Communities?
The holidays are usually a time for celebrating with your loved ones and decorating your house as you see fit. But, for homeowners who live in HOA-run communities, things work a little differently. Homeowners associations typically have individual sets of rules outlining what decorations residents can and can’t use. For most HOAs, though not all, this usually means prohibiting distracting holiday lights and large unanchored decorations.
Depending on their faith and beliefs, the holidays can mean different things to different people. This may lead them to decorate their homes using items distinct from their religion. One case in North Carolina recently made headlines because an HOA asked a couple to remove a cross from their yard.
The homeowners association, located in Raleigh, explained to the couple that the cross violated the community’s rules because it was not related to Christmas. The HOA argued that the cross related more to Easter or the Passover, making it unsuitable as a Christmas decoration. Instead, the HOA used nativity scenes as an example of a decoration that was more appropriate for the holiday.
The Raleigh association asked the couple to remove the cross in HOA or pay a $100 fine. In response, the couple wondered why the HOA asked them to provide biblical references to justify their decoration instead of referring to the community’s bylaws.
This North Carolina case is certainly an odd one as it tackles how decorations don’t relate to a particular holiday. More often than not, homeowners have a problem with HOA holiday decoration rules because of perceived religious discrimination.
The Display of Religious Symbols in a Homeowners Association
The Fair Housing Act prevents housing providers from discriminating against protected classes. This includes discrimination against a person for their religion. Under the FHA, homeowners associations are considered housing providers.
Thus, if an association’s policy discriminates against any religion, then it is a violation of the FHA. A policy banning crosses entirely may be viewed as discriminatory against Christians. The same applies to an HOA only allowing the display of certain religious symbols but not others. Such rules are unenforceable and unlawful.
However, if an association has a “facially neutral” policy that just so happens to restrict the display of religious symbols, such a policy may be deemed enforceable. This is, of course, if the HOA has no inherent intent to discriminate against a particular religion. Should a homeowner bring the case to court, they must provide proof showing the association had the intent to discriminate or disproportionately affect a protected class.
Keep in mind that the FHA does not completely guarantee owners the right to display religious symbols. Though, a handful of states have also passed their own fair housing laws that give additional protection. For instance, in Texas, homeowners associations can’t prohibit members from displaying religious symbols on their doorways, provided the display is not clearly offensive and or pose a threat to public welfare.
Understanding Discriminatory Intent and Disparate Impact
While it is not always easy to see when an HOA is being discriminatory, there are signs. For example, if an HOA board enacts a policy that purposely excludes members of a certain religion, then there is an obvious intent to discriminate. This can happen even if the policy itself does not tackle religion.
Another example is if an association prohibits owners from hanging items or decorations in doorways. It would be enforceable and non-discriminatory if the board enforced this rule equally and consistently. But, if the board only enforces it on certain religious items, then there is discriminatory intent.
Moreover, discriminatory intent is not limited to the policy itself. If the motivating factor is to discriminate, then it is just the same.
Disparate impact is another thing homeowners associations should take into account. Even if a policy is “facially neutral,” it may violate the FHA if it leads to a disparate impact on a protected class. This is when a policy affects a certain group in such a disproportionate manner that it basically equates to discrimination.
Protecting Your HOA from Liability
Because holiday decoration rules can put your homeowners association in hot water, it is imperative to take the proper precautions to ensure protection from liability. How can your HOA board do that?
- Be inclusive. Allow all religious holidays, not just the ones that society widely recognizes.
- In an effort not to alienate or discriminate against other religions, opt to use a more general term such as “holiday” instead of “Christmas.”
- Amend your rules to add exculpatory language. In clear terms, express that residents can file a request to recognize religious holidays not included on the association’s list.
- Enforce rules in a consistent and unbiased manner.
- Be specific. Tailor your rules to restrict the time, place, and manner of decorations and holiday displays. Adopt a timeframe detailing when residents can start putting up their decorations and how long after the holiday they should be taken down. Indicate where homeowners can display their holiday decorations. Finally, detail the manner of the decorations, such as the size and scale of the items. You can also add other restrictions, like requiring decorations to be anchored and turning off holiday lights during odd hours.
An Unfavorable Outcome for Everyone Involved
Whether you are a resident or a board member, homeowners associations can be tricky to navigate. The simple issue of holiday decorations can escalate into an argument over religion, similar to the North Carolina case asking owners to remove a cross in HOA. Sometimes, it can even result in an all-out legal battle between the association and a homeowner. And, as you may or may not know, lawsuits can cost the association (and its members) thousands of dollars in legal fees and damages — and nobody wants that.
Is your homeowners association having a hard time crafting policies and keeping up with changing laws? Elite Management Services provides legal assistance to HOAs of all shapes and sizes, in addition to many other services. Call us today at (855) 238-8488 or contact us online to request a free proposal.
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