By Sherri Hall
With warm weather on the horizon, holidays like Memorial Day and Independence Day will be here before we know it. Along with the holidays and mild weather — flags of all types will soon start popping up all over, including on properties within common interest communities. What can a community association do if things get out of hand with either the type, size or quantity of flags being displayed? When it comes to residents hanging flags, associations have certain rights in terms of regulating what is allowed as well as how and when flags can be displayed.
According to attorney John LaGumina of The LaGumina Law Firm in Purchase, New York, an association can regulate flags within their community but there are some limits. Of course, as in every situation, he said it’s important to refer to the governing documents. “Your governing documents may have a ban on flags entirely, or more typically, they’ll say ‘no flags or banners except in certain limited areas.’ With that being said, there are exceptions,” said LaGumina.
He noted that one of these exceptions is the American flag, as per the Freedom to Display the American Flag Act. This federal statute prevents associations from prohibiting owners from displaying the American flag, but not from enforcing their rules pertaining to flags, especially the location, explained LaGumina.
“The statute protects owners’ rights where they have a separate ownership interest or right to exclusive possession or use,” he said. For example, if the flag is on a pole, LaGumina noted that it depends on where the pole is installed. If the flag is hanging from an exterior wall, which is a common area, he said that then the association’s flag restrictions would apply. On the other hand, if the flag is located on a limited common element such as a deck, LaGumina said that then the federal statute would apply.
Another issue that LaGumina said often comes up is the matter of the right to political expression and the hanging of political flags (as well as signs). The United States Constitution protects free speech which includes political expression. “However, the case law on that is pretty clear that it pertains to state actors and a private condominium or homeowners association is not a state actor, so that doesn’t apply,” said LaGumina.
He noted that there are some states that have a law allowing the display of political flags and signs for a limited time period which is usually around election time. However, LaGumina said that New York does not have this law, so associations are free to prohibit political flags and signage in New York.
With regard to flags that are displayed through a window from inside the unit, LaGumina again said the association should refer to the governing documents. He noted that most associations do allow signage to be hung within the unit including in a window. However, he said that if the governing documents have a rule that signs are not to be displayed in a window, then the association can restrict flags from being displayed through unit windows.
LaGumina noted that flag regulations pertain to all flags including those representing other countries, emphasizing that the Freedom to Display the American Flag Act is only for the American flag itself.
He also explained that when hanging the American flag, there are certain guidelines to be followed under the Federal Flag Code, and it’s important for associations to know that they can enforce these rules. Some of these rules include that the flag should not be tattered or torn, the flag being displayed should be the correct current American flag, the flag should never be dipped to any person or thing, the flag should never touch anything physically beneath it, the flag should be permitted to fall freely, the flag should not be displayed upside down, the flag should not be displayed vertically against a wall, and nothing should ever be placed upon it nor be any part of it or attached to it. “It has to be 100% the American flag and nothing else. That’s the federal law and it’s pretty easy to follow,” said LaGumina.
He added that most associations will have a blanket provision that says homeowners must comply with governmental regulations and the flag code is a governmental regulation.
LaGumina said it’s important to remember that the purpose of flag regulations is not to take away people’s rights, but instead it’s for the betterment of the community as a whole. “You have to keep in mind the purpose behind the no signage and no flag rules is to maintain a uniform appearance with minimal obstructions,” he said. “While there certainly are exceptions, boards will be free to enforce their signage and flag rules including if you display the American flag incorrectly.”
LaGumina noted that the courts in New York usually apply the business judgment rule to board actions, which means that unless the action is discriminatory in nature or is in direct violation of the governing documents, the court is not going to get involved. “So, there’s broad latitude for boards to enforce their flag and signage policies,” he said.
In terms of enforcement, if a unit owner is displaying a flag that is against the rules, the board may or may not be able to take down the flag themselves. For example, if the flag is on a homeowner’s lot in an HOA, the board may not be able to remove it. However, if the flag is on a limited common element or common element in a condominium association, the board may be able to remove it. LaGumina said it depends on the location of the flag and the governing documents.
He pointed out that most of the controversy related to flags involves decorative or seasonal flags. LaGumina explained that some associations will allow certain decorative banners to be flown at specific times of the year, such as during holidays, but then they have to be removed as they are meant to be temporary. “The important point is how your rule is written. It needs to be very clear what the size is, what types are allowed, what’s not allowed and when they have to be removed,” he said.
However, LaGumina noted that associations must be careful with regard to discrimination. “The problem you run into with enforcement is discrimination,” he said. “You can’t prohibit a certain type of flags if it unfairly discriminates against a specific category.”
“Therefore, a unit owner can file a lawsuit if the association’s rules are written very vaguely, making it hard to determine what’s actually allowed and can claim discrimination,” said LaGumina.
For example, if one unit owner puts up a flag during Easter showing an Easter-related symbol such as a rabbit, but another unit owner who puts up a flag of a symbol relating to their religion is told to take theirs down, there could be a discrimination claim. “That could be grounds for discrimination because religion is a protected class,” said LaGumina. “If a rule is enforced in such a way that treats you differently, it could give rise to a federal discrimination claim. You need to be fair and uniform, and you should carefully draft the rules.”
If a unit owner does complain that the association is being discriminatory by asking them to remove a flag, the association has to decide whether to fight the claim or allow the flag. “It depends on the type of flag,” said LaGumina. “And if there’s a claim of discrimination or decent chance you’d be faced with a claim of discrimination, you might want to allow it. It’s more than ‘we’re going to get sued.’ It might be a discrimination case. Federal discrimination statutes are pretty tough, and you want to avoid those.”
Therefore, LaGumina said some associations choose to restrict all flags with the exception of the American flag. “And of course, the Federal Flag Code would also apply,” he added.