Revisiting Flag Restrictions on Flag Day
By Tiago D. Bezerra
On June 14, 1777, the Continental Congress adopted a resolution establishing the general design of the flag of the United States of America. In fall 1949, over one hundred seventy years later, June 14th was designated as Flag Day, a day of national observation for all Americans. In recognition of Flag Day, we revisit how current federal and state statutes restrict the extent to which community associations can regulate the display of American flags in common interest communities.
Although predated by restrictions in the Virginia Property Owners’ Association Act (“POA Act”), the Freedom to Display the American Flag Act of 2005 became federal law in 2006 after passing the House of Representatives and the Senate without objection and signed by President George W. Bush. Since then, the principles established in the federal law have been further enshrined in the POA Act – Section 55.1-1820 – and the Virginia Condominium Act (“Condo Act”) – Section 55.1-1951 – with some key additional restrictions.
The general rule under these statutes is clear – no association may prohibit any owner from displaying the American flag on their individually owned property (or an owner’s exclusive-use area), even if a covenant contained in a declaration or the condominium instruments prohibits such display. All three statutes, however, clearly reserve to associations: (1) the ability to restrict the display of the flag on the association’s common areas or common elements; and (2) the ability to establish reasonable restrictions (i.e., rules) pertaining to the time, place, duration, and manner of display of the flag. Common examples of American flag display rules we have encountered include prohibiting flagpoles, requiring flags to be kept in good condition, and requiring prior approval for the location where the flag will be displayed.
What is tricky about association rulemaking authority in this area is that the laws require the rule to be (i) reasonable and (ii) necessary to protect a substantial association interest. Further complicating this ambiguous scope of association authority is that the POA Act and Condo Act make clear that if a flag rule is challenged, the burden is on the association to prove that the rule protects a substantial association interest. While “preserving property values” and “maintaining harmonious appearance” are certainly the most significant interests associations commonly are created to protect, we are not aware of any reported case in Virginia where a court has opined that flag rules are necessary to protect these interests. As a result, and without clear guidance from a Virginia court on what it considers to be a substantial association interest worth protecting in the context of this issue, associations could be left in unchartered territory regarding whether a court may ultimately deem a particular rule reasonable and enforceable.
We recommend that governing boards review any flag rules currently in place in light of these laws preserving the right of owners to display American flags and, if necessary or appropriate, consider revising. Specifically, boards should consider the following:
- Review your covenants to identify whether any flag restrictions exist.
- Review and confirm that any flag rules only restrict the time, place, duration, and manner of display of American flags on an owner’s property or limited common elements.
- Determine whether the association interests are protected by the rules.
- If your rules distinguish between flags, consider the reason for the distinctions and whether rules should be uniform with respect to all flags.
- When in doubt, consult with legal counsel!
Finally, if your community has flag rules in place, it is critical that the rules are properly disclosed in resale certificates and disclosure packets. Unlike some other rules that may continue to apply even if not disclosed during resale, pursuant to the POA Act and Condo Act, failure to disclose flag rules can provide owners with an absolute defense in a case seeking to enforce violation of a flag rule. For example, if your community prohibits installation of standalone flagpoles but that prohibition is not disclosed in the resale document issued for a new owner, that owner may rely on such failure to disclose to install a flagpole.
Like our country’s flag, which has changed twenty-seven times in our Nation’s history, association flag rules should be revisited from time to time to ensure compliance with laws and the changing times. National days of observance such as Flag Day provide great opportunities to remind us to review the association’s governing documents, condominium instruments and/or rules and regulations to ensure community interests are being properly preserved.
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Legal Disclaimer: The information in this article is not intended to be legal advice. Legal advice must be tailored to your specific facts and circumstances and your association’s governing documents. Neither this post nor the CWMEB Journal is intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the individualized advice of your legal counsel.