Prohibiting the Display of the U.S. Flag
May 13, 2013

Can a homeowners association or a condominium association prohibit the display of the U.S. flag?

Some readers may recall that two years ago Dr. Dawn Kamin, owner of a business in a commercial condominium development located in Germantown, Tennessee, got into some hot water because she installed a flag pole in front of the unit occupied by her business and flew the American flag.  The owner of the development soon asked her to remove the flag and the flag pole.  Initially, she refused, allegedly on grounds of patriotism.  This news story set off a firestorm of controversy in the Memphis area.  Of course, it deals with a topic of this blog, condominium associations.

It may surprise some to learn that there actually is some law on this issue.  In 2006, Congress passed and President George W. Bush signed the “Freedom to Display the American Flag Act of 2005” which is codified at 4 U.S.C. § 5.  It provides:

[a] condominium association, cooperative association, or residential real estate management association 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.

 See 4 U.S.C. §5(3).

Interestingly, this act only applies to condominium associations and cooperative associations (more typical in the northeast, though there are very few in Shelby County) and not homeowners associations.  What it provides is that a unit owner may fly the U.S. flag from any portion of the condominium development to which he or she has a separate ownership interest or exclusive possession or use.  A unit owner has separate ownership over their unit and exclusive possession over the limited common elements delegated or assigned to the unit.  Thus, the question becomes where, within these spaces could a unit owner fly a U.S. flag?  Functionally, this means that a unit owner could fly the U.S. flag from their private balcony or patio, regardless of any rules of the association to the contrary.

As for homeowners associations, I am unaware of any associations which preclude the flying of flags, U.S. or otherwise.  That being said, the construction of a separate standing flag pole likely would require architectural control committee approval, provided the CCRs include architectural covenants.

Back to the Kamin matter, she was in the wrong, despite the federal law.  When she installed the flag pole, she installed it in the general common elements of the condominium development without the approval of the association.  Thus, the installation of the flag pole, itself, was a violation.  Secondly, since she did not have separate ownership interest or exclusive possession or use of the general common elements, she was not protected by this federal law.  Consequently, the association was well within its rights to have her take the flag and the flag pole down.

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