Illuminated plastic Santas, giant blow-up Rudolphs, thousands of twinkling lights . . . the holiday season is fast approaching and that means decorations may soon be adorning common areas, condominiums and homes within your community.  How should your association respond to the outdoor decorations homeowners may wish to display?

With respect to the common areas, it is important to remember that condominium and homeowner associations are made up of individuals with very diverse backgrounds and beliefs and this diversity must be considered and respected when considering holiday decorations.  Moreover, the Fair Housing Act and other fair housing laws prohibit discrimination on the basis of religion.  While there is certainly nothing wrong with decorating during the holiday season, associations need to be mindful that the holiday displays do not give the impression that the community favors one religion over another.  Therefore, when decorating the common areas, the association should consider using holiday decorations that tend not to pertain to a specific religious faith.  If an association decides to exhibit religious symbols such as nativity scenes or menorahs in a common area, it should give equal treatment to all other religious affiliations.

The Fair Housing Act restrictions do not apply to exterior religious displays by private homeowners.  However, your association's governing documents may prohibit holiday decorations altogether.  If your association does ban holiday decorations, it is essential that all decorative displays be prohibited.  In other words, you should not permit the display of holiday decorations for one holiday and then prohibit the display of decorations for other holidays.

While holiday decorations may be permitted by your association's governing documents, we recommend that associations develop and adopt reasonable rules which address size, illumination and time restrictions.  Typical holiday decoration rules should address how soon before a holiday such decorations may be displayed and how long after the end of the holiday the decorations must be removed -- otherwise, the association may be faced with holiday lights in the summer.  The size or total square footage of decorations should also be addressed.  In the event that the association does have rules and regulations in place, it should ensure that any holiday decorations follows the association's rules and regulations, receives the approval of the necessary committee, causes no damage to the common elements and does not create a safety hazard.

Happy Holidays from Marcus & Hoffman!

America's growing population of individuals age 55 and over, has resulted in a proliferation of age restricted communities.  It is important for these communities to ensure that they are in compliance with applicable laws and regulations in order to maintain their "55 or older" exemption.

Under the Fair Housing Act, as amended by the Housing for Older Persons Act, a community can qualify for the housing-for-older-persons exemption, and refuse occupancy to residents that fail to meet the age restrictions, provided that three requirements are met:

1.      At least 80% of the occupied units are occupied by at least one person who is 55 years of age or older. There is often a misconception that ownership of dwellings in adult communities is subject to the applicable age restrictions. To the contrary, only occupancy is restricted under the law. It is important to note, however, that state legislation, local zoning ordinances and an Association's governing documents may impose age restrictions which are more restrictive than federal guidelines so long as they meet the federal exemption requirement.

2.      The housing community must publish and adhere to policies and procedures that demonstrate an intent to operate as 55 or older housing. Some factors that are considered relevant are:

          - Is the housing community described as an age 55 or older housing community in advertising and to prospective residents?

          - Does the housing community maintain and consistently apply procedures used for verifying age and occupancy?

          - Do all lease provisions, rental agreements, rules, regulations, covenants and/or deeds indicate that the community is 55 or older housing?

3.       A procedure for age verification should be developed and followed.  The community must compile a list of occupants and verify the ages of the occupants.  A variety of documents are considered reliable as age verification documentation, including a birth certificate, a driver's license or a passport.  The community should re-survey its lists of residents at least every two years to ensure that the 80% requirement, or higher standard set forth in the Declaration is met.

The drafting, interpretation and enforcement of age restrictions can be challenging.  While there is no guaranteed insulation from lawsuits, a 55+ housing community is well advised to have its policies and procedures reviewed by competent legal counsel.  With competent advice, you will be in the best position to meet any potential legal challenge to the age restriction.