Homeowners associations are known for strict architectural rules that can also extend to outdoor fixtures such as flags, political signs, and Christmas decorations. But, what about the American flag? Can HOAs prohibit homeowners from displaying the U.S. flag on Memorial Day?
The Long-Standing Tradition of Flying the U.S. Flag on Memorial Day
Memorial Day is a federal holiday honoring the brave soldiers who died while serving in one of the branches of the United States armed forces. It takes place every year, on the last Monday of May. On this day, Americans across the country take the time to visit national cemeteries or memorials, laying flowers and the U.S. flag on the graves of the fallen.
A simple way Americans show their patriotism and commemorate the holiday is through the display of the American flag outside of their homes. It is a fairly straightforward observance. But, for those living in HOA communities, observing the holiday this way may not be as easy.
Homeowners associations have long been known to regulate what residents can and can’t display outside of their own homes. This includes rules pertaining to satellite dishes, solar panels, political signs, holiday decorations, and even the U.S. flag. Typically, HOAs have architectural guidelines that dictate these specific rules and an Architectural Review Committee in charge of enforcing them.
The Freedom to Display the American Flag Act of 2005
Memorial Day is a time of remembrance. Surely, homeowners associations can’t prohibit residents from flying the U.S. flag on this holiday, right? As it turns out, HOAs can’t prohibit the display of the American flag at all — not just on Memorial Day.
According to the federal Freedom to Display the American Flag Act of 2005, no housing development (including HOAs and condos) can restrict its members from displaying the American flag on their property. But, this Act only prohibits the outright banning of the U.S. flag. There are exceptions to this provision, which homeowners associations everywhere have already taken advantage of.
As per the Act, HOAs do have the authority to impose reasonable restrictions concerning the time, place, and manner of display. Associations can do this in an effort to preserve the community’s interest. This means HOAs can’t ban owners from displaying the flag, but they can tell them when, where, and how they can do it.
For instance, an HOA may not permit owners to put up a flagpole in their front yards to fly the flag. This type of restriction is generally considered reasonable as HOAs may be concerned about the effect that drilling holes have on the plumbing system. Most of the time, though, an association’s restrictions aim to protect the neighborhood’s aesthetic and, by extension, its curb appeal.
State Laws Protecting the Right to Fly the American Flag
Apart from federal law, homeowners associations must also refer to state laws. Several states have already enacted laws governing the display of the American flag and the power that HOAs have over it. For instance, Florida law dictates that homeowners can erect a freestanding flagpole of 20 feet or less. The signing of this law in 2008 effectively put to rest a lot of disputes between homeowners and their HOAs. Other states with similar flag laws include Colorado and Washington.
How to Display the U.S. Flag on Memorial Day
While the Freedom to Display the American Flag Act protects the rights of homeowners to fly the U.S. flag, it also requires the display to be consistent with the U.S. Flag Code. Owners must display the flag in a respectful manner, which includes but is not limited to the following:
- Owners must never display the flag with the union down unless in times of dire distress.
- The flag must never touch anything beneath it.
- Owners must never use the flag as a cover for the ceiling.
- Owners must never display the flag in inclement weather unless it is an all-weather flag.
- The flag must be displayed only from sunrise to sunset.
- If the flag will be displayed at night, proper lighting is required to illuminate the flag.
There is also a proper way to fly the U.S. flag on Memorial Day. According to the formal ritual, owners must hang the flag at half-staff until noon. Then, after that, owners must hoist the flag to the peak of the staff. In addition to the flag display, it is also customary for Americans to pause for a minute at 3 p.m. local time as part of the National Moment of Remembrance.
HOAs and the Selective Enforcement of Flag Restrictions
Aside from federal and state law, owners must look to the association’s governing documents for guidance on flag restrictions. If the documents don’t include any language restricting flag displays, then the association may have no power over it. A blanket provision covering architectural changes or anything aesthetically unappealing may also not apply as these are too broad. If such an HOA wishes to impose flag restrictions, it must first amend its governing documents. This will usually require a majority vote of approval from the membership.
Additionally, HOA board members must always enforce its flag rules in a uniform and fair manner. Restricting one owner but not another for the same reason may open the association to potential liability. Selective enforcement will also render the restriction invalid. If the association doesn’t enforce its own rules consistently, then it essentially waives them.
To avoid selective enforcement, boards should not rely solely on violation reports. Instead, boards should perform regular inspections of the community to see if anyone has broken the rules.
A Show of Patriotism and Respect
Flying the U.S. flag on Memorial Day is a time-honored tradition. For a lot of Americans, it’s the simplest way to show their respect and honor those who gave their lives for the country’s freedom. While an HOA can have reasonable flag restrictions, it can’t prohibit the display of the American flag altogether.
Most homeowners associations find it difficult to navigate the different federal and state laws that apply to them. Make your job as a board member easier with help from an HOA management company like Clark Simson Miller. Reach out to us today at 865.315.7505 or contact us online to learn more about our services.
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