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HB 5440: Michigan HOA’s Could Not Prohibit the Display of the American or State Flag

Michigan House Bill 5440 was introduced on January 24, 2018. HB 5540 would prohibit a Michigan homeowner’s association or neighborhood association from prohibiting the display of the United States flag or the state flag of Michigan. HB 5540 provides as follows:

Sec. 1. A local unit of government shall not adopt or enforce an ordinance, resolution, rule, or regulation that prohibits the display of a flag of the United States or a state flag of Michigan on private property. As used in this section, “local unit of government” means a county, city, village, or township.
Sec. 2. A homeowners association or neighborhood association shall not adopt a resolution, rule, or regulation that prohibits the display of a flag of the United States or a state flag of Michigan on private property.

House Bill 5540 would not apply to Michigan condominiums, as condominiums are already regulated by the Michigan Condominium Act. The Michigan Condominium Act currently bans a condominium association from prohibiting the display of a United States flag under certain circumstances. Specifically, 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.

However, the Michigan Condominium Act is silent as to the ability of a condominium association to ban the display of the state flag of Michigan. If House Bill 5540 were enacted into law, it would create separate standards related to flying the United States flag and the Michigan state flag for condominium associations and homeowners associations under state law.
All Michigan condominium and homeowners associations would still be subject to the Federal Freedom to Display the American Flag Act of 2005. 4 USC 5 provides in pertinent part:

SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED 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.
SEC. 4. LIMITATIONS.
Nothing in this Act shall be considered to permit any display or use that is inconsistent with–
(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or
(2) 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, federal law already bans a homeowners association and neighborhood association from completely prohibiting the display of the United States flag. Even if HB 5440 were to be enacted, homeowners and neighborhood associations would still be entitled to create reasonable restrictions related to time, place and manner related to flying the American flag. As such, the only thing that would be new about HB 5440 for Michigan homeowners associations would be that an association would no longer have the ability to completely ban the Michigan state flag. Michigan homeowners association should review their governing documents to ensure that they do not contain a blanket prohibition on the display of all flags. If all flags are completely banned, the association should amend its declaration or deed restrictions to permit the display of a United States flag, subject to reasonable restrictions related to the time, place and manner of the display. However, if HB 5440 were enacted into law, Michigan homeowners’ associations would also need to amend their governing documents to ensure that they did not contain any prohibitions on flying the state of Michigan flag as well.

 Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country.  He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 480-8758 or kevin@hirzellaw.com.

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kevin@hirzellaw.com

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Hirzel Law has offices in Farmington, Grand Rapids, and Traverse City, Michigan with a fourth office location in Chicago, Illinois. Mr. Hirzel focuses his practice on condominium law, homeowners association law, and real estate law. He is a fellow in the College of Community Association Lawyers (“CCAL”), a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel formerly served on the CCAL National Board of Governors and is a former member of the Community Associations Institute’s (“CAI”) Board of Trustees, an international organization with over 40,000 members worldwide that is dedicated to improving community associations. Mr. Hirzel has been recognized as a Leading Lawyer in Michigan by Leading Lawyers, a distinction earned by fewer than 5% of all lawyers licensed in Michigan. He has been named a Michigan “Rising Star” in real estate law by Super Lawyers Magazine, a designation is given to no more than 2.5% of the attorneys in Michigan each year. Mr. Hirzel was also named as a “Go-To-Lawyer” in condominium and real estate law by Michigan Lawyer’s Weekly. Hirzel Law was also voted the best law firm in Metro Detroit in the Detroit Free Press Best of the Best awards. He is the Co-Chairman of the State Bar of Michigan’s Real Property Law Section Committee for Condominiums, PUDs & Cooperatives. Mr. Hirzel has authored numerous articles on community association law for publications such as the Michigan Community Association News, Michigan Real Property Review, Macomb County Bar Briefs and the Washington Post. He is also the author of “Hirzel’s Handbook: How to operate a Michigan Condo or HOA”, which is available for purchase on amazon.com. Mr. Hirzel has been interviewed on community association legal issues by various media outlets throughout the country, such as CBS, CNBC, Common Ground Magazine, Community Association Management Insider, the Dan Abrams Show on SiriusXM Radio, the Detroit News, Dr. Drew Midday Live on KABC Radio, Fox Business News, Fox News, HOALeader.com, the Law & Crime Network, Michigan Lawyer’s Weekly, NPR, WWJ News Radio and WXYZ. Mr. Hirzel is a dynamic speaker and frequently lectures on community association law throughout Michigan, as well as nationally at the CAI National Law Seminar, and is a two-time winner of the best manuscript award at the CAI National Law Seminar.

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