Q: Can an HOA prohibit flags or flagpoles on properties?

Homeowners’ and condo associations, it seems, have fought more wars to get rid of Old Glory than the Communists ever did. The latest flap centered on a front yard flagpole, placed in a neatly manicured front yard garden spot by a Korean War Veteran, Bob Willits, and his wife, Judy, near Greenfield, Indiana.

The Fieldstone Homeowners Association objected, notifying the Willits in September that the flagpole was prohibited.

They followed with a formal letter instructing them to take down the flagpole. The Willits’ dug in like the American garrison at Pusan. “We have absolutely no plans to take it down,” Judy Willits told local media. “It would be kind of a bloody situation if we had to take the flag down at this point.”

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The Willits’ pointed to the

Freedom to Display the American Flag Act of 2005

, which limited the authority of homeowners’ and condo associations to prohibit the display of the U.S. flag where the development represented residents with an ownership interest in the property (rental landlords are free to set their own rules with regard to flag display).

The homeowners association countered, asserting that the law still gave them authority to restrict the ‘time place and manner’ of the American flag display.

“We do not tell anyone they cannot fly a flag,” said board president Kaye Eckert. “What we are having a problem with is the flagpole. Flagpoles are not allowed in this association. It’s never, ever been about the flag, which is what seems to come to the foreground all the time.

In September, the Association softened its position, telling the Willits’ they could keep the flag if they paid $500 to cover the legal fees the HOA had incurred in taking action against them.

And then Hancock County prosecuting attorney Michael Griffin, himself an officer in the U.S. Army Reserves, pulled an

Inchon.

On October 23

rd

, he demanded that the Fieldstone Homeowners Association drop their demand, or he would sue them on behalf of the county and the Willits'.

At issue: The Freedom To Display the American Flag Act allows homeowners associations to place restrictions on the time, place and manner of the display of the American flag if they can demonstrate a

substantial interest

in doing so. Griffin rejected the notion that the HOA had a substantial interest in the display of the flag.

“The association apparently assumes that it has a legally

‐

sufficient “substantial interest,”” wrote Griffin in his

ultimatum to the Fieldstone Homeowners’ Association

. “However, the association has asserted its interests to be type of community and future outdoor maintenance. Every homeowners association has those interests. If those general interests were enough, the law would not require a “substantial interest,” it would simply say that homeowners associations always have the right to regulate “time, place, or manner.” But the law does not say that. The law requires a substantial interest, something more than the usual interest of homeowners associations.”

While the HOA’s president was careful to distinguish between their objection to the flagpole, as  distinct from the flag itself (and thereby presumably sidestep the Flag Act of 2005), Griffin also rejected this argument:

“To display the flag, some means of display is necessary. There is no possible way for a flag to be displayed without it being attached to something. Flagpoles, whether freestanding or attached to the façade of a home, are the customary way of

displaying a flag outdoors. Aesthetic preference is not a legally‐sufficient

“substantial interest” of the association with respect to American flag display, and

I know of no other reason for an association to distinguish between flagpoles

attached to the façade of a home and free‐standing flagpoles.”

The homeowners association quickly beat feet in retreat.

The Big Picture

The Fieldstone Homeowners Association went after an 82-year-old disabled combat veteran with Parkinson’s disease whose brother died in Korea – during an election year. Indeed, they chose to push the situation to a head just days away from an election.

They chose… poorly.

Politicians flock to flag issues like flies do to… fly food – and this case was no exception. Board members should understand that enforcement against the U.S. flag is an emotional issue, deeply unpopular with the masses, and so they don’t have much backing when they choose to jihad against the display of the U.S. flag. In fact, the Flag Act was passed by a voice vote in the House and by unanimous consent in the Senate. Boards should take careful measure of their community’s backing on these issues, as well as federal and state law, before engaging in legal Banzai charges against homeowners displaying flags and flagpoles.

The

Community Associations Institute has published some guidance

for members on navigating flag issues in areas covered by the Flag Act – that is,  condominiums, homeowners association-managed communities and coops. Some key points of advice:

‘"Time, place and manner restrictions" is a legal term that refers to certain types of restrictions that are narrowly tailored to further a substantial and legitimate interest of an association,’ counsels the CAI. This is very close to Michael Griffin’s reading – the authority of the homeowners association to restrict freedom of expression of this type, is narrowly construed. The HOA usually has an uphill fight to show a substantial interest in restricting a well-maintained flag display.

Use the least restrictive measure possible to address the issue and satisfy the HOA’s interest in the time, place and manner of the flag display.

Also, check your state’s laws concerning the issue – some of which may be more stringent than the federal law. For example, in Florida,

FL Statute 720.304(b)

specifically states: “Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement.”

The State of Washington has

similar legislation.

So does

Colorado.

An HOA board that did not bother to check out state laws would quickly find itself in a losing position if it tried to enforce a covenant restricting flagpoles – especially where the flagpole was well-maintained and the display was respectable in accordance with the

U.S. Flag Code.

So when it comes to enforcing covenant restrictions – real or imagined – against homeowners displaying flags or building flagpoles, boards should look before they leap.

Author Bio
Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.