Well, here we are, Ash Wednesday; past Martin Luther King’s birthday, President’s Day, and Mardi Gras, and some homeowners still have their Christmas and Hannukah decorations on their homes from those holiday celebrations. As we all know, many restrictive covenants specify a period of time following the specific holiday during which the decorations must be removed from the house. And yet, our weather has been such that, in many cases removing those decorations may not be done safely due to the onslaught of snow storms and the accumulation of snow, all of which seems to have been exacerbated by the regular weekend snow storms. Should the board nevertheless enforce those restrictive covenants and impose fines, or is there an alternative?
Occasionally, we have weather that just does not cooperate with our restrictive covenants. Think about several years ago, when drought conditions and watering restrictions prevented homeowners from installing landscaping within the time periods required by the covenants. In many cases, associations suspended the strict enforcement of that particular restriction until the watering restrictions were lifted, or relaxed such that installed landscaping had a fighting chance of surviving. Naturally, there were owners that took advantage of the situation, but for the most part, compliance was had within the spirit and intent of the covenants.
In the case of the holiday decorations, the board might adopt a policy in accordance with its responsible governance policies that provides that enforcement of this specific restriction will be temporarily relaxed due to the weather conditions, and to recognize safety concerns. The policy might specify the extended period of time to remove the decorations, as well as other considerations, such as, that even though the decorations might remain installed until the specified time, they should not be illuminated, they should be removed at the earliest possible time, and similar matters.
The obvious concern with relaxing such a restriction is whether the association will be deemed to have forevermore waived the right to enforce it. That is a possibility, even if such a policy is properly crafted. However, if properly crafted, we believe that it is less likely that a reviewing court would determine that a waiver exists, and in the future would enforce the restriction.