Idaho Jury Verdict is a Warning to HOA Boards
A couple living in Hayden, Idaho was recently awarded a $75,000 verdict against their HOA after a jury decided the HOA had discriminated against the couple on the basis of religion. In short, the couple holds a multi-day Christmas event on their property each year, featuring elaborate lighting, decorations and live music. The event draws thousands of people, according to the Spokesman Review.
The couple notified the HOA of their intent to hold the event after purchasing the property, having first reviewed the HOA’s covenants and determining that the event would not be prohibited by the covenants. The HOA replied with a letter stating that the event would violate its rules and regulations and then raised the issue of conflict with non-Christian residents, saying: “And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith. And I don’t even want to think of the problems that could bring up.”
Focus on Behavior, Not the Content
Mentioning the potential conflict with non-Christians is where the HOA went wrong in this matter, turning it from a simple dispute over the interpretation of the covenants or rules and regulations into matter of religious discrimination (or at least the appearance of religious discrimination). HOA boards have the right and duty to enforce their covenants and rules in a non-discriminatory way. In this case, the religious content of the display should have been ignored and the HOA board should have kept the focus on the disruptive nature of the event. In other words, bright lights, noise, and crowds are issues the HOA can regulate, but it shouldn’t matter whether the homeowner is celebrating Christmas, New Year’s, or Arbor Day. By focusing on the behavior that impacts neighbors and not the message, the HOA would have avoided the appearance of discrimination based on a “protected class.” Protected classes include race, color, religion, national origin or ancestry, gender, age, disability, or veteran status.
Can: prohibit live musical performances. Can’t: specifically prohibit performances of Christmas music.
Can: put reasonable limitations on the size and number of political yard signs. Can’t: ban or encourage signs for particular issues or candidates.
Can: prohibit flags other than the U.S. flag (reasonable regulations on the U.S. flag are permitted). Can’t: generally allow flags, but ban specific flags such as Marine Corps or rainbow flags.
Amend Covenants if Disruptive Behavior is Not Clearly Prohibited
If you are on the board of an HOA, always keep in mind that your HOA’s covenants and rules may allow you to regulate behavior, but they don’t allow you to regulate the content of a homeowner’s message. If your covenants and/or rules don’t clearly prohibit certain behavior the board or the HOA members find disruptive, go through the proper methods to adopt changes to the covenants and/or rules. Just be sure the HOA is not attempting to create or apply regulations targeting people based on any protected class status, as described above.
What if the Message is Offensive?
Finally, although an in-depth discussion is beyond the scope of this article, there can be times where the content of a homeowner’s message might be subject to regulation by the HOA if it is clearly offensive to a reasonable person or intended to harass or intimidate others. These are very difficult situations to navigate, and any HOA facing such a situation would be wise to consult with an attorney experienced with such matters before communicating with the offending homeowner.