By: William Z. Kolobaric
Each year on Veterans Day, we honor our men and women in the United States Armed Forces. As a small token of appreciation, many Co-owners routinely fly the American flag in honor of loved ones who have served or currently serve in the United States Armed Forces. However, many questions arise regarding the rights and responsibilities of Co-owners when displaying the American Flag, such as 1) whether the condominium may restrict the size of an American Flag 2) whether the condominium may restrict the location of an American Flag 3) is a Co-owner allowed to hang more than one American Flag 4) can the condominium bylaws or rules and regulations restrict the hanging of the American Flag and 5) what, if any, laws govern the usage of the American Flag in condominiums? In honor of Veterans Day, this article explores many of these questions and more.
Although many individuals fly the American Flag throughout the year, a large group of individuals tend to do so only around the holidays, such as Independence Day, Memorial Day and Veterans Day and in remembrance of September 11, 2001. It is typically during these times of the year that potential conflicts arise between members wishing to fly the American Flag and Association Boards who enforce the Bylaws and/or Rules and Regulations regarding the flying and display of the American Flag within their community.
Despite the fact that there is a federal statute regulating a co-owner’s right to display the American Flag and, typically a state provision too, conflicts still arise between Condominium Boards and their members on how, when and where they can display the American Flag. On the one hand, you have individuals who believe they have the unfettered right to display the American Flag, under their First Amendment rights of Freedom of Speech and Expression, wherever and whenever they want and, on the other hand, you have Boards who want to control what flags, including the American Flag, can be displayed and flown in their community, when these flags can be displayed and where they can be displayed.
The Freedom to Display the American Flag Act of 2005
The Freedom to Display the American Flag Act of 2005 (“Flag Act”), 4 USC §5, provides that:
[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 State 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.
The Flag Act further provides that the right of a co-owner to display the American Flag is subject to “any reasonable restriction pertaining to the time, place, or 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.”
Accordingly, under the Flag Act, a Co-owner may display the American Flag on those limited common elements to which he/she has exclusive possession (e.g., a porch or patio or deck not shared with another Co-owner) or anywhere within his/her unit. However, the Board of Directors may restrict a Co-owner’s rights to display the American Flag if hung from a window, patio, balcony or deck onto a general common element sidewalk and blocked the sidewalk and/or pathway as this type of restriction would be reasonable to protect the Association’s substantial interest in the use of the sidewalk and/or pathway. Thus, the key under the Flag Act is to not impose a blanket ban on the flying of the American Flag and to only impose restrictions that are reasonable and necessary to protect owners’ interests in association property.
The Michigan Condominium Act
In Michigan, the Michigan Condominium Act (“Act”) under section 56a, MCL § 559.156a, states that
[a] developer or association of co-owners shall not prohibit a co-owner from displaying a single United States flag of a size not greater than 3 feet by 5 feet anywhere on the exterior of the co-owner’s condominium unit. A developer or association of co-owners shall not enforce a prohibition in existence before the effective date of this section on or after that effective date.
While this provision may appear straightforward for Boards or property managers to police, but unfortunately, this is not the case. Where many co-owners and Boards have faced problems is the definition of a condominium unit. Under Section 4 (3) of the Act, MCL § 559.104 (3), “condominium unit” means that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed, regardless of whether it is intended for residential, office, industrial, business, recreational, use as a time-share unit, or any other type of use.
In your traditional condominium project whereby there are multiple units within a single building and under one roof, a condominium “unit” is defined as the air space inside the four walls, ceiling, and floor. In these condominium projects, many co-owners have and wish to display the American Flag on the exterior wall of the building. So what if a co-owner displays a 3 feet by 5 feet American Flag on the exterior wall of the building? Can the Association require him/her to take it down or is the Co-owner entitled to continue flying the American Flag?
Unfortunately, a court has yet to interpret Section 56a of the Act so there are no definitive answer. It may seem clear to a Board member that he/she, on behalf of the other co-owners, should enforce the prohibition, as the Association has the legal right to restrict the size and/or location of where the American Flag can be flown but that does not mean that it should always do so. As the following news stories from across this country demonstrate, emotions run high when dealing with such an important and protected expression of patriotism: American Flag Pits Utah Woman vs Condo Association; Condo Owner, Association in Dispute Over American Flag; Mother of 2 Soldiers Battles Condo Over Right to Fly a Flag; ‘I was Heartbroken’; Marine Told to Take Down American Flag at His Condo.
As set forth above, the protected expression is not an unlimited right under both the Flag Act and the Act. Boards and their members should work cooperatively to achieve solutions that will allow members to honor their loved ones who currently serve and/or have served in the Armed Forces, while at the same time protect the aesthetics of the community as a whole and prevent property damage.
Note that neither the Flag Act nor the Act address whether an Association can restrict the flying or whether a Co-owner can fly other flags, such as the state flag, the national league of families POW/MIA flag, college flags, holiday flags, etc. Given the recent events in France, some Co-owners may wish to fly the French Flag in a sign of solidarity. Such issues may be addressed in the Bylaws or Rules and Regulations of your condominium. If you are interested in restricting various flags or wish to discuss restricting the flying of the American Flag, you should contact an experienced community association lawyer regarding both the legal and practical consequences of such an action.
William Z. Kolobaric is an attorney with the law firm of Hirzel Law, PLC where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (248) 480-8758 or email@example.com. Please view The Michigan Community Association Law Blog at https://micondolaw.com for additional resources on Michigan Community Association Law.