Flying the flag is an important way that Americans celebrate their liberty and the sacrifices of past and present heroes who defend it. There were news stories about a dispute between an Ohio homeowners’ association and a Vietnam veteran over a flagpole that brought an important issue to the forefront.
In Ohio, a homeowner erected a large flagpole on his property to fly the flag. The homeowners’ association told him that the flagpole (not the flag) violated the declaration of covenants for the neighborhood, and asked him to take the flagpole down. It offered to place flagpoles in common areas in the neighborhood, and suggested that the covenants would allow him to fly a flag on a pole attached to his house. He refused. After a firestorm of publicity, the HOA averted litigation by permitting the homeowner to keep his flagpole. The underlying question remains: can a homeowners’ association really prohibit an owner from flying the American Flag?
In Virginia, the answer is no—but an association can probably prevent an owner from building a large flagpole on the property. In 2001, a Richmond area homeowners association objected to a homeowner who erected two flagpoles in his front yard. The case proceeded through trial and the Henrico Circuit Court judge ruled that because the flagpole was subject to restrictions in the association, and because the flagpole was erected without permission, the flagpole had to be removed.
Following that case, the Virginia Property Owners’ Association Act was amended (and subsequently amended again) to provide that “no association shall prohibit any lot owner from displaying . . . the flag of the United States.” Regardless, an association still has the authority to, “establish reasonable restrictions as to the size, place, duration, and manner of placement or display of the flag.” Preventing an owner from putting an unduly large flag on an unduly large pole in the front yard is likely a reasonable restriction. Construction of a flagpole may also be subject to approval by the association under the covenants.
In a condominium association, the issues related to flag flying may play out somewhat differently. Like the Property Owners’ Association Act, the Condominium Act prevents condominium associations from prohibiting display of the flag outright. But a provision of the Condominium Act allows the association to restrict display of the flag in the common elements. It’s possible that the balcony and exterior of the condominium are common elements. If so, the association would have authority to restrict the flag display.
In our experience, associations encourage residents to fly the American Flag. Disputes about “flagpoles” are a different matter. An unfortunate consequence of disputes over flagpoles such as the one in Ohio is that the association is often unfairly painted as unpatriotic, when in truth it is only fulfilling its obligation to enforce the covenants that the owners accepted when they bought into the neighborhood. If the association fails to enforce the covenants when an owner builds a flagpole, it may lead to accusations of inconsistency when owners attempt to build other unapproved structures later on.
Associations are obligated to object to displays that are in violation of covenants. For example, we were involved in a case in which a homeowner erected a flagpole without permission of the association, stating he wanted to fly the American Flag. We encouraged him to fly the American Flag, but discouraged the 20-foot flagpole. He objected. In the end, because of information he posted on the Internet, we determined the homeowner may have had another purpose: it could have been that he wanted the flagpole so that he could hide a ham radio antenna inside the flagpole. Eventually, the parties resolved the matter, the homeowner agreed to remove the flagpole and fly the American Flag in a different manner.
Volunteers serving on their association board do not want to be unfairly portrayed as unpatriotic. Because the covenants of each neighborhood, and the facts surrounding each flag display, are different, an Association should consult an experienced Virginia community association law firm before taking action.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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