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Housing Counsel: You Have the Right to Fly the American Flag

Written by on Sunday, 08 October 2006 7:00 pm

Over the years, and especially since the September 11th tragedy, community association homeowners and their board of directors have been arguing about our American flag. Homeowners want the right to fly the flag whenever and wherever they want, especially on holidays and special occasions, while board members were concerned about uniformity and architectural guidelines.

Now, this argument has more-or-less been resolved in favor of the American community association homeowner. On July 24, 2006, President Bush signed into law the Freedom to Display the American Flag Act of 2005.

The law is short and to the point. Section 3 states:

A condominium association, cooperative association or residential real estate management association (i.e. a homeowner association) may not adopt or enforce any policy, or enter into any 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.

I used the words "more-or-less," because section 4 of the Act contains a limitation on this broad language. That section says that notwithstanding section 3, community associations still have the right to impose reasonable restrictions "pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest" of the association.

The principle sponsor of the Act was Congressman Roscoe Bartlett (R-Md). When he learned that the bill had been signed by the President, he told the Community Association Institute (CAI) that "this is a reasonable and thoughtful approach that gives residents the right to fly our colors, even as it gives community associations the right to establish appropriate limitations on the size and locations of flags displayed in their communities. This is a perfect compromise between the rights of individuals and the important obligations of community association leaders." (Reprinted from a CAI Press Release, July 24, 2006).

Does this mean that community association owners now have the right to fly a flag anywhere on their own property? What about balconies or patios in a condominium, which are called "limited common elements" but are within exclusive possession or use of individual owners?

Many community associations have architectural control covenants contained in their legal documents. These covenants are binding on all owners -- and tell everyone what can and cannot be done within the community. Often, before a fence, a deck or even a flag pole, can be installed on the outside of the unit, the homeowner must submit plans to an architectural control review Board for approval.

As a result of this new law, these Boards will have to regroup and review any guidelines currently in effect which will have an impact on the right of their members to fly the flag. It is to be noted that Section 4 of the Act does not place any limitations on the flag itself -- but only on how, where and when the flag may be flown.

Furthermore, any such restrictions must "be necessary to protect a substantial interest of the association. This means that board of directors -- if they really want to impose any such limitations -- must be very sure that they comply with the Congressional mandate: substantial interest."

The days of uniformity for uniformity sake -- which often has been the hallmark of many architectural guidelines -- is over when it comes to our American flag.

The flag is more than just a pennant waiving in the wind. It is a symbol of America, democracy and patriotism. Indeed, right or wrong, members of Congress annually try to enact legislation regarding flag burning. To many people, any restrictions on the right to fly the American flag is anti-American.

What should boards of directors do? In my opinion, they and their attorneys should carefully review the Federal Flag Code, as it has been amended from time to time. They should permanently repeal any covenant which restricts community association owners from flying the flag of our country, especially on those days which Congress has declared to be important. Those days include: Independence Day, Martin Luther King, Jr. day, Veterans Day, Presidents Day, Mother’s Day, Memorial Day, Labor Day, Columbus Day, Thanksgiving Day, New Years Day, September 11, December 7 and (of course) Flag Day.

There are statutory rules (called the "Federal Flag Code) spelling out the proper procedures for displaying the flag. Homeowners who ignore these rules should be chastised by their Association.

This issue has often become a "cause celeb" and have all too often caused serious division in many community associations. Once such an emotional issue surfaces, it can impact on the association for a very long time.

Hopefully, the new law, plus some common sense among all owners and boards of directors, will finally put this emotional issue to rest.

Rules for Flying the American Flag (Excerpted from The Flag Code, United States Code, Title 36, Chapter 10)

  • Display the flag only from sunrise to sunset. Flag may be displayed twenty-four hours a day if properly illuminated. (NOTE: This does not give a homeowner the right to flood his home with so many lights that it will disturb other owners in the area.)

  • Raise the flag briskly, but lower it ceremoniously.

  • Flag should not be draped over the hood or back of a vehicle; it should be fixed firmly to the chassis or clamped to the right fender.

  • No other flag or pennant should be placed above the American Flag; if there is another flag on the same level, it must be to the left of the US Flag.

  • Except as a signal of distress, the flag should never be displayed upside down.

  • The flag should never touch anything beneath it, such as the ground, the floor, water or merchandise.

  • The flag should never be used for advertising purposes in any manner.

  • The flag should not be displayed on days when the weather in inclement, except when an all weather flag is displayed.

  • When the flag is in such condition that it is no longer a fitting emblem for display, it should be destroyed in a dignified way, preferably by burning.
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      About the author, Benny L. Kass

    Individual news stories are based upon the opinions of the writer and does not reflect the opinion of Realty Times.