Displaying the Flag
Q. I have heard that Congress passed a law about the display of the American Flag that impacts homeowners associations. Does this new law override the association's rules about flags?
A. It is a fact that there is a new federal law concerning the right to display the American Flag which impacts all community associations; however, this law does not extend to other flags and, further, the new law does not negate the association’s ability to create rules regarding the display of the American Flag.
The Freedom to Display the American Flag Act was signed into federal law recently and complies substantially with the Public Policy position of the Community Associations Institute which provides: “CAI strongly supports the elimination of community association restrictions that prohibit the display of a reasonably sized, removable American flag from a resident’s exclusive use or limited common element areas, so long as the flag is displayed in accordance with the Federal Flag Code as amended. CAI further believes that community associations – not a state law – are best suited to determine the appropriate size, placement and installation of a flag pole.” The Community Associations Institute is a national organization which represents the interests of, and provides educational opportunities to, those citizens who have chosen to live in communities with recorded covenants creating a formal owners’ association, which may be condominiums, cooperatives or homeowners associations.
The legislation does prohibit an association from adopting or enforcing a policy or agreement that “would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.”
Importantly, the law also provides the following limitations:
· Flags must be displayed consistent with the provisions of the Federal Flag Code, or any rule or custom pertaining to the proper display or use of the American flag.
· Community associations may place reasonable restrictions pertaining to the time, place or manner of displaying the American flag necessary to “protect a substantial interest” of the community association.
These limitations are important to preserving the ability of community associations to self govern as provided in their recorded covenants. State and Federal legislative bodies should not be permitted to interfere with matters of contract, i.e. the covenants, entered into between the owners of property and the associations they join. This new law respects the need for such a limitation.
The display of other flags and decorations is not a subject of this law and the passage of a law concerning the American Flag should not be taken as a signal that other laws may be passed which will further impact the ability of associations to regulate reasonably the aesthetics of their communities.