16 Oct Is It a “Grand Old Flag” or a Community Eyesore?

Those choosing to live in a condominium community voluntarily concede a measure of their autonomy as homeowners to their condominium association, whose governing board has the power to enact and enforce restrictions on the manner in which unit owners occupy and use their property. In this respect, the powers accorded to an association’s governing board are not insignificant.

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In exercising its authority, a condominium’s governing board is generally free to enact and enforce restrictions as long as the restrictions:

• Represent good-faith efforts to further the purposes of the condominium community;
• Are consistent with the condominium’s governing documents; and
• Comply with public policy.

And, in the absence of unreasonable, discriminatory, arbitrary, or capricious behavior on the governing board’s part, courts will generally consider such use restrictions valid unless they are overridden by the membership in a manner consistent with the condominium’s governing documents. Of course, reasonable people will disagree on which behaviors are discriminatory or arbitrary, making the enforcement of some of these restrictions matters of contention.

There is one right, however, that unit owners in some states do not relinquish upon moving into a condominium community: the right to display the United States flag on their premises. Under many states’ statutes, condominium governing boards are powerless to abrogate the right of unit owners to display a United States flag if they so desire.

In Florida, for example, the law provides that a unit owner may display “one portable, removable United States flag in a respectful way… regardless of any declaration rules or requirements dealing with flags or decorations.”Similarly, in California, “no declaration or other governing documents shall limit or prohibit, or be construed to limit or prohibit, the display of the flag of the United States by an owner,” except as required for the protection of the public health or safety.

Many other states have also enacted laws protecting the right of condominium residents to display the United States flag. And the Federal government has contributed its own legislation to protect this right, enacting the Freedom to Display the American Flag Act in 2005.

Yet even the right to fly “Old Glory” is not absolute. The laws that give condominium unit owners the right to display the United States flag typically allow for reasonable restrictions on that right. For example, condominium associations in Arizona are given the right to adopt reasonable rules and regulations regarding the placement and manner of display of the flag. In Colorado, condominium associations are permitted to regulate the location and size of the flags.

Unfortunately, these “reasonable” restrictions have occasionally proven to be battle lines in heated conflicts between condominium governing boards and unit owners. For example, condominium boards, under the “reasonable restrictions” principle, have prohibited unit owners from displaying the United States flag, arguing that such displays ruin the desired appearance of the condominium community. Unit owners have countered that such a prohibition is unreasonable and discriminatory.

In other instances, condominium boards have used their power to impose reasonable restrictions on flag displays as a pretext for inappropriate actions and overbearing restrictions that in fact have little to do with displaying the flag. Such abuses of power are not only damaging to a community’s spirit but also potentially costly to associations, especially in states such as California that award a prevailing unit owner attorneys’ fees and court costs.

By enacting legislation that protects a condominium unit owner’s right to display the United States flag, states have spoken loudly and clearly on this contentious issue. A condominium association board that merely objects to the manner in which the flag may alter the uniform appearance of the community or that uses its power to retaliate against certain unit owners it dislikes must accept the fact that the law protects unit owners’ rights to display this deeply cherished national symbol. Even when given the power to impose reasonable restrictions on displaying the flag in their communities, association boards would be wise to consult their attorneys before demanding that unit owners take down the “Stars and Stripes” that hangs on their front doors.