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 a Michigan Community Association attorney who concentrates his practice on commercial litigation, community association law, condominium law, construction law and real estate law. Mr. Hirzel has been a Super Lawyer’s Rising Star in Real Estate Law from 2013-2017, an award given to only 2.5% of the attorneys in Michigan each year. He was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a designation given to less than 175 attorneys in the country. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.