Tell Ole Pharaoh, Let My People Go!

Almost every year, around this time, I hear “our condominium association won’t let us build a Sukkah, but allows Christmas trees and menorahs. The board is discriminating and I am going to sue!” Before you do that, there are a few things to consider. Let’s start by asking,  “What is a Sukkah?”

A Sukkah is a temporary, open roofed structure constructed for use during the week-long Jewish festival of Sukkot celebrating freedom from slaver under Egyptian tyranny. While I personally favor Sukkah’s, and would like to report that they must be permitted, such is not the case. A community association can prohibit the construction of a Sukkah in the common elements by a member provided that i) the board does not arbitrarily deny the member’s request, and ii) the board treats all similar requests in a like manner such that other members cannot place their religious and  holiday symbols in the common elements, too.

Is the association’s denial a violation of a member’s First Amendment right to free speech? No, because the First Amendment applies to  government action. The association is a private corporation and is not part of government.  While an association does not need to comply with the requirements of the First Amendment, it does need to fairly enforce its governing documents. An association’s declaration is a contract that specifies the mutual rights and obligations of the members and the association. It often details the permitted uses in and on the common elements. Restrictions in a declaration are upheld so long as they serve a legitimate purpose and are reasonably applied.

In See Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Association, Inc., 456 F.Supp.2d 1223, 1227 (S.D. Fla. 2005), court upheld an association’s prohibition of a worship club holding services in common areas because the association’s rule that prohibited worship services was reasonable in the context of a planned residential community. The court also applied a balancing test of sorts when it noted that the had the worship club been allowed to use the common area auditorium, it would have prevented other members from their right to use the facility.  

The board’s standard in reaching its decision of whether or not to approve a member’s request to construct a Sukkah in the common areas is to exercise its reasonable business judgment. So long as the board does so, and there is no evidence of fraud, self-dealing, dishonesty or incompetency, then it would be difficult  for a member to successfully challenge such a decision.

An association MUST act fairly and equally towards all members to avoid selective enforcement claims. In other words, if an association allows other members to display their holiday decorations, but denies a member’s request to construct Sukkah, then the association could be subject to claims of discrimination. Therefore, if the request to build the Sukkah is denied, all requests from owners to erect or place any holiday or religious decorations or items in or on the common elements should also be denied. Does this mean that if our association denies a member’s request to build a Sukkah or place other items of religious connotation in the common areas that the association is prohibited from displaying a Christmas tree and menorah? I am glad you asked.

Ignoring the subject of material alterations, the U.S. Supreme Court, held that a Christmas tree, by itself, is not a religious symbol… although Christmas trees once carried religious connotations today they typify the secular celebration of Christmas. In contrast, a menorah was found to have more religious significance. But, when placed next to a Christmas tree, the Court found that the overall effect of the dual display a recognition of both Christmas and Chanukah as part of the same winter holiday season, which has attained secular status in our society.   County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

So, what are the lessons we can learn from this? Association board’s must treat their members reasonably and fairly when deciding such issues and cannot under any circumstances favor one religious group over another. Christmas trees are clearly permissible subject to counter–arguments pertaining to, perhaps ethereal, material alteration concerns. Menorahs are clearly permissible when placed next to a Christmas tree, but, may or may not be permissible in their absence. Sukkah’s must be allowed if there is a history of board accommodation provided to other religious groups, and can be denied if there is no such history.  Of course, you can avoid these issues by building your Sukkah in the backyard (assuming you have one). Practically speaking, since the holiday of Sukkot lasts around one week, by the time anyone complains it is likely the holiday will be over and the Sukkah removed. Nevertheless, if a unit owner demonstrates a  flagrant disregard of the governing documents, they could be the subject of a lawsuit for injunctive relief, brought by the board, to ensure such behavior is not repeated.

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