By Quinn Sperry, Attorney, Morris Sperry
As Americans, we love our country and those men and women, past and present, who serve and sacrifice for our freedoms. Displaying the Flag of the United States is one way we show our patriotism to honor our nation and the heroes that make this country great.
Recently, the right to fly our nation’s Flag within homeowners associations (each an “HOA”) has stirred some controversy here in our state. When news broke that an HOA in the Salt Lake Valley wanted to restrict its residents from flying Old Glory, owners of that HOA and many others expressed their outrage. It is likely that no other symbol evokes more emotion and patriotism than the Stars and Stripes. So if you are an owner or resident in an HOA, what are your rights when it comes to flying the American Flag?
When a person purchases a home in an HOA (a condo, townhome, or detached home), that person becomes a member of the HOA and agrees to adhere to the HOA’s particular covenants, conditions, and restrictions (the “CC&Rs”). Courts interpret CC&Rs as legally binding contracts between the owners and the HOA. This is why it’s so important for owners or prospective purchasers to review the HOA’s CC&Rs so they understand the covenants or restrictions that may apply to the use of their property and the HOA’s common property within the HOA’s boundaries. Due to the complex nature of CC&Rs, owners in HOAs sometimes fail to properly understand the restrictions they agree to when purchasing their home or fail to see the many benefits HOA living brings with it.
While some HOA rights are apparent, other rights have been misunderstood. Some people feel that an HOA restricting the location where a Flag is flown is a restriction on freedom of speech and the property rights we as Americans hold so dear. However, this is not always the case.
A homeowner in an HOA has the absolute legal right to fly the American Flag on property he or she exclusively owns or controls, within certain legal requirements. Both federal and Utah state statutes apply to one’s right to display the American Flag. Section 3 of the Freedom to Display the American Flag Act of 2005 (federal law) states:
“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.”
A quick reading of this section may suggest that an HOA may not restrict an owner’s right to display the Flag at all. However, the key issue to focus on in this scenario is the location where an owner is attempting to display the Flag.
If the owner has “exclusive possession or use” of an area then the HOA cannot restrict or prevent Flag displays in that area. The HOA, however, can restrict Flag flying in the common areas. The CC&Rs and plats for each HOA identify those sections of an owner’s dwelling or lot that are owned exclusively by the owner and those areas over which the owner has the exclusive right to use or possess. The HOA’s CC&Rs further identify the common areas of the HOA. In a condominium project, the common areas are owned collectively by all owners and may include areas such as the clubhouse or pool area, landscaping surrounding condos, and building features (siding, roofs, eaves, etc.). In other community association developments (non-condominium projects), the common areas are owned by the HOA itself. Thus, the common areas in HOAs are not owned by any one owner and there is no “separate ownership interest” in the common areas for a particular owner. Moreover, the CC&Rs generally provide that all owners of the HOA have a right to use and enjoy the common areas, which means that no individual owner has the “right to exclusive possession or use” of these common areas. These common areas, therefore, fall outside the scope of section 3 of the Freedom to Display the American Flag Act of 2005, and an HOA may regulate or even prohibit the display of the Flag on its common areas.
Utah law further addresses displaying flags in an HOA. Utah’s Display of Flag Act includes condominium associations within the definition of “residential property management authority” and provides, in part:
A residential property management authority may not prohibit a resident from displaying a Flag:
(a) consistent with the guidelines in [federal law];
(b) within an area over which the resident has exclusive control; and
(c) from a staff, pole, or window.
As explained above, an owner or resident of a condominium association does not have “exclusive control” over common areas within his or her HOA; therefore, a condominium association may restrict or prevent an owner or resident from displaying the Flag in common areas. On the other hand, CC&Rs typically define the interior sides of windows in condominium projects as being under the resident’s “exclusive control”; thus, an HOA could not prohibit the resident from displaying the Flag in a window.
Utah’s Community Association Act – which applies to planned unit developments and community associations other than condominium projects – further addresses the issue of displaying the Flag in a community association. Section 219 of this act states:
- An association may not prohibit a lot owner from displaying a United States flag inside a dwelling or limited common area or on a lot, if the display complies with United States Code, Title 4, Chapter 1, The Flag.
- An association may restrict the display of a flag on the common areas.
This law allows the HOA to restrict the display of the Flag in the common areas, which are owned by the HOA and not by any particular owner. Keep in mind, however, that the HOA may not prohibit an owner from displaying the Flag in any area that is not common area, except in limited circumstances
Federal law allows an HOA to adopt “any reasonable restriction pertaining to the time, place, manner of displaying the Flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.”  One example of a valid time, place, and manner restriction could apply to illuminating the Flag for display at night. “[I]t might be appropriate to restrict large flood lights that illuminate the flag because it disturbs the ability of neighbors to sleep.” An HOA may require that the Flag be properly displayed per the Federal Flag Act. We all hope that someone displaying or using the Flag does so in a manner that is proper and respectful to the Flag but, just in case, an HOA may require that the individual correct his/her actions so that the Flag is properly displayed.
One must keep in mind that even though an HOA has the right to restrict the display of the American Flag on common area, the HOA may take the position that it wants its owners and residents to fly the Flag in the common areas. An HOA may choose to amend its CC&Rs (in accordance with its particular amendment procedures) and specifically allow owners to display the American Flag in certain common areas. Such an amendment may contain guidelines concerning the location and manner that flag poles or other devices may be installed on the common areas to minimize the potential for future damages (i.e. water penetration through the holes) while still allowing residents to express their patriotism and respecting a person’s right to fly that Star Spangled Banner.
It is important to note that while many view HOAs in a negative light, these people limit their focus and perspective to only certain restrictions imposed by the HOA. It is true that when individuals live in an HOA, they are essentially entering into a contract with their neighbors and, by entering into that contract, the owners may give up some of their rights that may otherwise accompany traditional homeownership (outside of an HOA); however, these individuals in an HOA gain protections and rights too. Some of the use restrictions that may limit traditional property rights concern: colors used on the exterior of a home, materials and colors used when installing a fence, types of plants or trees an owner may have in his/her yard, smoking tobacco products in or around a dwelling, and the number or type of pets an owner may have, whether an owner may rent their property. Viewed from another perspective, these restrictions grant owners the right to protect themselves from breathing secondhand smoke and to maintain uniformity in the quality of craftsmanship, landscaping, and level of building and landscaping maintenance all of which preserve property values. An HOA’s CC&Rs further afford owners the right to elect members of their HOA’s governing board, approve their HOA’s budget, and ratify proposed amendments to their HOA’s CC&Rs.
In conclusion, living in an HOA does not strip individuals of their Constitutional, federal, and/or state law rights when it comes to issues such as displaying the American Flag. By living in an HOA, individuals agree to adhere to further statutory and contractual provisions intended to promote the health, safety, and welfare of the community residents, maintain a sense of community, and preserve owners’ property values.
**This article originally appeared on our blog on Nov. 11, 2015.
 Utah Code Ann. § 57-24-101(3).
 Utah Code Ann. § 57-24-102(1).
 Utah Code Ann. § 57-8a-101 et seq.
 Utah Code Ann. § 57-8-1 et seq., applies to condominium projects.
 See Section 4 of the Freedom to Display the American Flag Act of 2005.
 See Guidance for Complying with the Freedom to Display the American Flag Act of 2005, Community Associations Institute, available at http://www.caionline.org/govt/news/Pages/GuidanceforComplyingwiththeFreedomtoDisplaytheAmericanFlagActof2005.aspx.