Can I Fly My Flag?

Article Courtesy of  The Coastal Breeze

By William G. Morris, Esq.

Published May 12, 2019

 

Over the years, condominium, cooperative and homeowners associations frequently battled with homeowners over the display of flags. Some battles included giant flag poles and giant flags. Others were driven by spite between an owner and an association. Others involved a difference of opinion concerning the importance of uniformity in the neighborhood and the homeowner’s desire to express patriotism.
 

The level of dispute reached Congress and on January 4, 2005, Representative Roscoe Bartlett and 13 other members of the House of Representatives introduced The Freedom to Display the American Flag Act of 2005. It took over a year for Congress to pass the Act and it was signed into law by President George W. Bush on July 24, 2006. The Act prohibits condominium associations, co-ops or residential homeowners associations from adopting or enforcing policies or agreements 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 the member has a separate ownership interest or right to exclusive possession or use.

 

The Act does not mandate associations allow unlimited flag displays. It only provides a right to members of the association, which means an owner of a unit within the purview of a pertinent association. Location of the flag is also limited. The homeowner can only display the flag on property which is owned by the owner or in which the owner has exclusive right to use (i.e. a limited common element in a condominium for the exclusive use of the owner’s unit). That means the owner cannot stick a flag in common areas available for use by other owners, walkways, outdoor flower gardens even most sides of the building.

The Act further clarifies that it does not provide unlimited right to display a flag by providing that associations may adopt reasonable restrictions pertaining to the time, place or manner of displaying the flag necessary to protect a substantial interest of the association. That means the homeowner is subject to reasonable regulations, even when the placing a flag on the owner’s property. The owner has no right to display a flag on other property within the association. That means, associations can adopt rules completely banning flag displays on common property and not run afoul of the Act.

Florida’s legislature also addressed the issue, albeit not as broadly. Florida’s Homeowners Association Act provides that any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner and one portable, removable official flag that is not larger than 4 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag. Homeowners within a homeowners association also have a right to a free standing flag pole no more than 20 feet high on any portion of the homeowner’s real property and may raise one official United States flag, not larger than 4 feet by 6 feet, and one additional flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. The second flag must be no larger than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations and all setback and locational criteria contained in the associations governing documents.

Florida’s legislature did not forget about condominiums. The Condominium Act provides that any unit owner may display one portable, removable United States flag in a respectful way and on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may also display in a respectful way portable, removable official flags, not larger than 4 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard.

Those living in Florida cooperatives do not get a special flag statute.

All these laws addressing display of the American flag do not guaranty harmony. Some owners use the laws as a way to harass other owners and bother then by placing flags anywhere they want and in any size, shape or height. Some simply think the law allows them to display an American flag as an act of patriotism in any manner they deem appropriate. In any event, associations and owners can still end up in dispute.

A typical dispute is the case of Oak Park Villas Condominium v. Crisafulli. The Crisafullis owned a condominium unit in Oak Park Villas Condominium. They placed benches, pavers and a small American flag suspended on a wire stand slightly higher than the height of the benches in the common elements near their unit. The case proceeded to arbitration and the arbitrator ruled that the Florida Condominium Act allows display of a portable, removable United States flag but does not provide that a unit owner may display the flag on the common elements apart from the exterior wall of their unit or the limited common elements adjacent to their unit. The arbitrator emphasized “otherwise, a unit owner could display a United States flag anywhere in the condominium property.” The arbitrator ordered removal of the flag or approval of the requisite number of other unit owners required to alter the common elements as provided in the declaration of condominium.

In 2014, Larry Murphree sued the Tides Condominium Sweetwater by Del Webb Master Homeowners Association, Inc. in federal court. Murphree claimed he was displaying a small United States flag in garden pots outside the door to his condominium and that his condominium association was harassing him because of the display. He asked the court to agree he had the right to display the flag under The Freedom to Display the American Flag Act of 2005. The court determined that Congress did not intend to provide a private remedy under the Act or any enforcement mechanism. It specifically ruled that the Act did not provide Mr. Murphree with right to sue his condominium association. His case makes it clear that the flag laws do not create unbridled right for property owners to display flags. It confirms that a property owner wishing to display an American flag must do so in compliance with rules and reasonableness.

All too often, disputes arise when a property owner refuses to follow the rules set by the statutes thereunder or permissible regulation within association documents. As the court pointed out in Murphree, the federal law does not provide a property owner with right to sue his or her association. But, if a homeowner follows the rules, these laws provide the right fly Old Glory.

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