‘Holiday’ lights in dispute with homeowners’ association

Q. My homeowners’ association fined me $100 for not removing miniature white lights that wrap around the railing on my balcony.

The rules of the association state that holiday lights and decorations can be put up 30 days before a holiday and must be removed within 30 days after the holiday. The rules do not state what holidays are included or excluded such as a religious, state or federal holidays. I have responded back to the board, through the management company, as I was directed. My letters included a list of holidays I celebrate and their dates that coincide with when I displayed holiday lights. I never heard anything back regarding my letters except a picture of my lights and a fine.

To my shock the association withdrew the $100 from my checking account this month without my permission along with my monthly association assessment (which is on auto pay). My bank said this is not allowed. What do you suggest I do moving forward?

A. Initially, I trust that the association provided due process (i.e., written notice of violation and opportunity for a hearing) before it levied the fine.

Unfortunately, most rules that I review regarding holiday decorations are vague and incomplete. That is, these rules often lack any specificity as to what constitutes a holiday under the rule. This is frequently a fatal flaw in terms of enforcement of the rule. Holiday decoration rules need to identify/define what is a covered holiday in order to avoid uncertainty and the resulting enforcement issues.

Arguably, if a rule does not describe/define holiday, and you followed the time frame within which holiday lights can be displayed for an actual holiday (and not something like “Be Kind to Lawyers Day”), you have a legitimate defense to the claimed violation.

I don’t know a lot about how the auto pay banking feature works. However, I am advised that the unit owner, not the association, sets the parameters as to what can be withdrawn from an owner’s bank account. As such, you should review the details of the authority you granted.

Q. My answer to a question in the Aug. 9, 2024 Column brought out the ire in one reader.

He states: “Hate smoking! Hate the smell and the damage it has done to so many. With that said it’s a pleasure for many and in their own home their business. There are many ways for condos or other facilities to mitigate smoke from entering common areas. It was wrong of you to say someone who has owned a home for years can now be banned from smoking in their home. That not a winnable position. New residents, of course. But someone who works hard their whole life and owns a home — it’s their home — not a common area. Learn some empathy; it will serve you well in your field and stop being so flippant with your answers. It’s dangerous.”

A. When a person purchases a unit in an association, they give up some of their personal freedoms. That’s a fact of life. Moreover, the appellate court in Illinois has made abundantly clear that a declaration can be amended as long as the amendment does not violate some public policy, and the amendment can apply to current unit owners (See, Apple II Condominium Association v. Worth Bank & Trust Co., for example).

There is no public policy in Illinois that would be violated by an amendment to a declaration that prohibits smoking in individual units. In fact, a review of laws reflect that the public policy in Illinois supports smoking restrictions. Preventing smoking in units via an amendment to the declaration is absolutely a “winnable” position, based on actual experience.

Typically, an association adopts a smoke-free amendment when all other options have failed to stop smoke from migrating into other units or the common areas, and not as a first option.

I do not begrudge anyone their personal decision to smoke (and I enjoy the occasional cigar on the golf course). However, I think you will find that there is much more empathy for persons who are exposed to second-hand smoke in their units that migrates from another unit than there is for the smoker.

I take this column very seriously, and a lot of thought goes into each of my answers, based on the law and actual experience. So, I have to respectfully disagree that my answers are “flippant.” And to your last point, I do like “danger” — now that was flippant.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.