Balancing scales with HOA legislationA homeowner's association's primary function is to maintain the community while improving property values. Part of supporting the community is ensuring that the neighborhood retains or enhances its curb appeal, a fact that is especially true during the holiday season. 
As the unofficial motto "Everything is bigger in Texas" suggests, Texas homeowners tend to go bigger and bolder around the fall and winter holidays. Decorations, lights and religious iconography can range from the subtle to the extreme. Associations may face tough decisions at this time of year as they struggle to balance holiday cheer with their community policies. And getting that balance may prove even more difficult for HOAs since the adoption of SB 581 this legislative season, which made significant changes around religious displays.

How will SB 581 affect your HOA and its current policies surrounding holiday décor?  

In previous years, HOAs were allowed to restrict homeowners from putting up religious displays anywhere on their property except the front entry. Even then, displays had to be made of permitted materials and remain under 25 square inches. However, a new state law that went into effect recently will now protect Texas owners from such restrictions.
The Homeowners Religious Freedom Act, SB 581, which took effect May 31, 2021, amends Section 202.018 of the Texas Property Code to read as follows:
"[A] property owners' association may not enforce or adopt a provision in a dedicatory instrument, including a restrictive covenant, that prohibits a property owner or resident from displaying or affixing on the owner's or resident's property or dwelling one or more religious items the display of which is motivated by the owner's or resident's sincere religious belief."
Regardless of the holiday, the familiar decorations that go up throughout the year are more than just ornamental. For many, the holiday season can represent a sense of comfort and community. With a plethora of festivities during the fall and winter months, your community is bound to experience an influx in home décor that incorporates religious displays. But every community association has its rules and standards to consider, and holiday décor is not immune to them. 
But how do you enforce those rules and maintain your community standards while complying with the new legislation? We spoke with Leah K. Burton, shareholder and attorney for Roberts Markel Weinberg Butler Hailey PC (RMWBH).

Leah K. Burton, RMWBHFirst and foremost, we recommend the adoption of a religious display policy that sets forth the parameters for installation of religious displays in the community. While property owners’ associations cannot generally regulate the installation of religious displays on an owner’s property, an association can both require an owner to obtain architectural review committee approval prior to the installation and also prohibit installations under specific circumstances.”   - Leah Burton, RMWBH

According to Leah, each community is unique, as each has its own set of governing documents specific to the property and subject to that community’s specific restrictions. That being the case, it is essential that association boards consult with legal counsel experienced in property owners’ association law to assist them with their legal needs, as such counsel will be best positioned to understand, interpret and advise on compliance with state and federal law. 

Two key points from SB 581 your association should consider as we proceed into the holiday season:

HOAs cannot limit the size or placement of a religious display on an owner's property.
Senate Bill 581 amends Section 202.018 of the Texas Property Code, which before 2021 allowed a property owners association to adopt or enforce a restrictive covenant that limited an owner or resident to displaying or affixing a religious item only on the entry to their dwelling. 
Section 202.018 now prohibits the adoption or enforcement of a restriction that would restrict an owner or resident from displaying a religious item anywhere on the owner's or resident's dwelling or property unless it violates certain criteria. 
HOAs may still restrict or remove displays if it meets certain criteria.
While owners may now place religious displays anywhere on their property, Section 202.018 still permits a property owners association (HOA) to restrict or remove them if they:
  1. Threaten public health or safety.
  2. Violate a law other than a law prohibiting the display of religious speech.
  3. Contain language, graphics, or any display that is patently offensive for reasons other than its religious content.
  4. Are located on common area or common element property.
  5. Violate any applicable building line, right-of-way, setback, or easement; or are attached to a traffic control device, streetlamp, fire hydrant, utility sign, pole, or fixture. 
While it's important to maintain the look and feel of your community, the protection of displayed religious items is not negotiable. 


Leah K. Burton, RMWBH"The potential for a board to find itself in legal trouble should it violate the new legislation is great, so if someone comes to you with a complaint, document it as soon as possible and, if necessary, seek legal counsel at the first mention of legalities."  - Leah Burton, RMWBH


Four best practices to help your association stay in compliance with SB 581 and allow you to maintain your community standard:

1. Be reasonable. 
Despite religious freedom, your association can still put restrictions surrounding the timeline of actual holiday displays. Assess how long decorations should be allowed to be up and have a guideline for residents on when it's appropriate to put up and take down their holiday decorations. 
A common rule is to put them up no earlier than a month before the holiday and take them down no later than two weeks afterward. Specify start and end dates for holiday displays and establish "time of day" rules. Many residents will be open to reasonable holiday décor restrictions, such as what times of the year they can have them up and how much they can display.
Most people know that nobody wants holiday lights flickering in their windows at 2 a.m., but it doesn't hurt to remind residents to be considerate of their neighbors. If you haven't already done so, consider surveying your residents to see what matters most to them when decorating for the holidays.
2. Remember, common areas have different rules.  
Allowing residents to place holiday décor in the community's common area can expose the association to liability risks. Ensure residents know that these areas are off-limits and that only the appropriate committee members, your board or your management team can work on any community display. 
You might want to consider keeping any community decorations you choose to put up in certain common areas, such as the lobby or clubhouse, free from religious imagery or undertones – to remain neutral. If your community association is passionate about keeping religious themes in your holiday décor, make sure you present a balanced display in which all faiths are equally represented. A simple solution is to hire a designer or company that specializes in holiday décor and lighting. They will know how to incorporate the latest trends and balance multiple religious depictions, given the new changes to the legislation. 
3. Apply fairly. 
While the new changes to the legislation will allow Texans to display their values proudly, it also comes with a caveat: a display can't be "patently offensive to a passerby for reasons other than its religious content." 
Therefore, knowing the ins and outs of your governing documents and ensuring they are following the new bill will aid you in making sure you are applying these rules fairly. Suppose there is an outright ban on holiday décor. In that case, you must enforce that ban on all decorations and holiday displays throughout the year, but religious displays would be the only exemption. 
However, if your governing documents do not prohibit holiday decorations explicitly and your association does not have a specific reason to do so, reasonable décor that doesn't pose a safety risk should be allowed. Survey the residents before establishing policies to have a good grasp of how the community feels about decorations. Whichever option your board chooses, make sure that you consult with legal counsel experienced with HOA law to ensure that your association is avoiding any missteps.
Communicate any rules you set through a letter or website posting before each holiday so that residents that decorate are reminded of the policy and any applicable deadlines. Send a reminder to residents in February and September, right before the big spring and winter holiday seasons. Make new residents aware of the policies when they move in.
4. Remember that people's tastes differ. 
We all have different likes and dislikes, and as a result, there is no one definition of what's "tasteful." The light displays that some consider a whimsical window treatment may be obnoxious to someone else, or a precious family heirloom that holds great meaning for a resident may be an eyesore for their neighbor. However, board members can save a lot of time and frustration by remembering that personal preferences must take a back seat to simply ensuring that all resident decorations and displays are within the limits of your adopted policies.
If your board receives a lot of feedback about décor styles or religious displays, start a conversation with all residents about changes to your association's governing documents. Let them know your goal is to remain in compliance with the legislative changes.
The holidays are supposed to be a time to come together and have a good time, and your holiday décor policies should not take away from that. Keep your focus on simple rules of location, time, place, size and safety. And keep your association's greater goal in mind – respecting your membership's personal beliefs and holiday cheer while ensuring their safety and compliance with your community's covenants. You'll find that doing this will be the kind of gift that truly keeps on giving.

For more information regarding new Texas legislation that impacts HOAs, read our article "13 Ways SB 1588 Affects Your Texas HOA."

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Friday October 08, 2021