At sundown yesterday evening, the Jewish holiday of Yom Kippur, also known as the Day of Atonement, came to an end. As the holiest day of the year for the Jewish people – and with its central themes of atonement, repentance and forgiveness – the holiday gave me cause to think about the tensions that exist between a homeowners association board of directors and its members and how those tensions might be eased with some common sense approaches.
When you live in a community governed by an association, you must abide by the association rules. But what if those rules conflict with state or federal laws, such as the Americans with Disabilities Act or with first amendment/private property rights? Either common sense of the parties will prevail or a court will decide the issue for them.
Any community’s restrictions on exercising free speech must be reasonable as to time, place and manner.1 This means communities may manage residents’ expressions by limiting political signs to a certain size and placement or by coordinating a community bulletin board when there is a ban on soliciting door-to-door. However, where a community attempts to altogether shut down residents’ individual expression, that association will make itself vulnerable to constitutional challenge.
Concerning religious expression, an association may also manage religious decor with the same reasonable restrictions on time, place and manner. The more important issue in context of religious sensibility is that the association policies are tolerant and open to a variety of religious expression. Even when it comes to holiday decorations for the community, boards must be sensitive that installing a Christmas tree at the clubhouse may draw criticism where there is also no Menorah present. Community decorations should either be neutral to celebrate the winter season or representative of many faiths. Similarly, Boards should be careful to avoid drafting rules prohibiting the display of religious items on the residence entryway. Recently, after an association restricted a Jewish couple from placing a Mezuzah on their doorway, Texas enacted legislation preventing restrictions against “displaying or affixing on the entry to the owner’s or resident’s dwelling one or more religious items the display of which is motivated by the owner’s or resident’s sincere religious belief.”2
To summarize, Boards must use common sense and be careful with the rules they draft. To avoid any potential conflict, Boards should prepare draft resolutions and distribute them to the owners and schedule a meeting at which anyone who would like to provide input may do so before the board holds a meeting at which the new rule is voted on. In this way, conflict is resolved before the rules are enacted.
1 Committee For A Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344, 929 A.2d 1060 (N.J., 2007).
2 HB 1278, signed by Gov. Rick Perry and effective June 17, 2011. (Although the association may still put rules in place to restrict the size of an item or ban objects with offensive imagery or language except when it threatens public health or safety, violates a law, is patently offensive to a passerby, is in a location other than the entry door or door frame, or is greater than 25 square inches.)
