Q: Can a board demand alteration or removal of a Santa Clause ornamentation making an obscene gesture?
A: In both New York and New Jersey, an Association Board could demand alteration or removal of a Santa Clause ornamentation making an obscene gesture. Best practices for any Association would be to have a reasonable Rule or Policy Resolution in place which deals specifically with holiday decorations and terms of enforcement. Absent some type of policy, many governing documents contain covenants prohibiting offensive conduct and/or prohibit owners that engage in conduct deemed a nuisance.
However, a Board should be cautioned to tread carefully as the enforcement of a holiday decoration policy is fact-sensitive and advice of legal counsel is well-warranted. While some jurisdictions apply the U.S. Constitution’s first-amendment principles to political or religious displays, it would be very difficult for an owner to argue that they have an unfettered legal right to display secular holiday decorations, let alone those that are commonly viewed as offensive in nature.
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