The Owner Put a Sukkah Where?

September 22, 2010 marked the beginning of the Jewish holiday of Sukkot. This holiday starts on a different date between late September to late October each year and has agricultural orgins, celebrating the harvest. If it is Sukkot, we can be assured of getting calls asking us what to do about the Sukkahs that some homeowners have erected on their balconies or patios (or in some cases right in the common area). For those of you who don’t know what Sukkot entails, some Jews construct temporary outdoor dwellings, called Sukkahs, where they traditionally eat, sleep, and otherwise spend their time during this seven day holiday. Click here for examples of Sukkahs. The Sukkahs are typically small temporary wooden structures, but can be quite elaborate, incorporating various decorations such as hanging fruit and vegetables.

What do you do if a homeowner puts up a Sukkah on their exclusive use common area, or worse, on the common area that is not theirs to use exclusively, in violation of governing documents that contain prohibitions on exterior modifications without architectural committee approval? Despite our constant admonishments to uniformly and consistently enforce the governing documents, the association’s right to enforce its restrictions has to be weighed against the homeowners’ right to practice their religion.

If the Sukkah is on the general common area, the board is absolutely in the right to require that it be removed. Religious freedom does not give a homeowner the right to use the common area to the exclusion of the association’s other members. What about on an exclusive use patio or balcony? There is no case law in California, however a New York court that addressed the issue held that the association had to allow it, based on the owners’ right to freely exercise their religion.

Our recommendation is to allow the Sukkahs (provided they are temporary), but to regulate them. For a first time offender, the board should send a notice that the structure is prohibited by the association’s governing documents, and while the board would consider granting a variance because of the religious purposes, in the future, the owner must submit a request in writing to the board prior to the holiday. The Board may, however, retroactively approve the Sukkah conditioned on the owner’s agreement that it will be removed after the holiday and that its construction did not impact the common area (meaning that it was not nailed or otherwise affixed to the structure of the building, which is obviously not permitted). If this is a recurring issue at your association, you may want to consider implementing an operating rule providing specific guidelines for this and other religion-based conflicts with the governing documents that may arise.

This Blog post was written by SwedelsonGottlieb associate Stephanie Rohde. If you have questions of comments, you can contact Stephanie at smr@sghoalaw.com.