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2007 Issue 3

Unit Owners Right to Wave the Flag
By Adam J. Blank, Esq.

In years past, courts have disagreed as to whether a condominium association or other common interest community could regulate the display of the American Flag. This past summer the debate ended when President Bush signed into law H.R. 42, the Freedom to Display the American Flag Act of 2005 (the “Act”). This Act states that condominium associations and certain other common interest communities:

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.

The Act, however, does not give unit owners an unlimited right to display the American Flag. Associations may place “any reasonable restriction pertaining to the time, place, or manner of displaying the flag . . . necessary to protect a substantial interest of the [association].”

While the courts have not yet had a chance to explain what constitutes a reasonable restriction pertaining to the time, place or manner of displaying the flag, the following points should generally help guide associations in drafting rules to comply with this new Act:

The Freedom to Display the American Flag Act of 2005 only applies to American Flags;
Consider limiting the size of permitted flags, or requiring flags to be a standard size;
Consider permitting only one flag to be flown per unit;
Consider prohibiting any installation of a flag, or flag pole, which will damage common elements or limited common elements (such as vinyl siding);
Identify permissible locations to display the flag and consider prohibiting:

Flags on tall flagpoles where they are likely to flap in the wind at night disturbing unit owners;
Low flying flags near roadways which are likely to obstruct drivers’ views; and
Flags hanging over walkways or staircases which are likely to obstruct pedestrians;

Consider limiting the material flags may be made of to nylon, polyester and cotton (in other words preclude “flags” made of arrangements of shrubs, flowers, lights or other unusual materials);
Consider having the association or management company provide and/or install the flag, pole and installation bracket to ensure uniformity and to ensure that that there is no damage to the common elements or limited common elements;
Require unit owners desiring to fly the American Flag to comply with other rules governing the display of the American Flag which state:

It is the universal custom to display the flag only from sunrise to sunset;
The flag may not be displayed on days when the weather is inclement, except when an all weather flag is displayed;
The flag should never touch anything beneath it, such as the ground or floor; and
If the flag should ever become torn, faded or in any way mutilated it must be replaced.

In any motion to pass a new flag rule, the association should state that the amendment is in response to the Freedom to Display the American Flag Act of 2005. Additionally, the motion should state the reasons for the proposed rule change so that it is clear why the restrictions are reasonable and necessary to protect substantial interests of the association.

Adam J. Blank is an attorney in the Danbury office of Cohen and Wolf, P.C.

DISCLAIMER: The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of this article should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney.

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