Flag Flap in Boston Condominium Unfurls High Emotions

EllenBy Ellen A. Shapiro, Esq.

As we approach the anniversary of 9/11, many people are thinking of ways to honor our country and how we stood up to terrorism, including the patriotic symbols displayed by millions to show America’s unified spirit.  Twelve years ago, banners, ribbons, and flags emerged on cars, windows, mail boxes, etc. to proudly display symbols of that spirit—a tradition that continues today.

Unfortunately, back in 2001 many community associations were unprepared to deal with the outpouring of support by their members.  The governing documents of most associations contained architectural integrity clauses designed to preserve the uniform appearance of the condominium’s exterior by prohibiting the installation of signs, banners, and flags to the exterior of units or in common areas; they also prohibited the display of any “decoration” on a window that could be viewed from outside the unit.  Conflicts and confusion arose between the boards that were obligated to enforce the governing documents and the residents who wanted to demonstrate their patriotism.

A Legal Response
After the 9/11 attacks, Community Associations Institute (CAI), the only nationally recognized organization of community associations, immediately urged communities to enact a moratorium against the enforcement of restrictions that would prevent the display of the American flag.  By year’s end, CAI wisely enacted a policy supporting the display of the American flag at community associations provided that the display complied with the Federal Flag Code (4 U.S.C.§1).

Flag Condo Aug.CAI recommended that all associations review their rules on flag displays based on the reasonableness of the restriction that might otherwise prohibit the display of the flag.  Associations throughout the country responded by adopting reasonable rules and regulations regarding the placement and manner of display of the flag.  CAI also discouraged associations from attempting to enforce restrictions that presented an outright prohibition on the display of an American flag.  However, under no circumstance was it suggested that the requirement of the Federal Flag Code be ignored.

In 2005, Congress passed the Freedom to Display the American Flag Act, which permitted owners in communities to fly the flag in the face of restrictions that appeared to prohibit it.  The Act clearly provided that associations could not ban or otherwise prohibit the flying of flags; however, it also made it clear that boards were permitted to regulate how the flag could be displayed.  Among the regulations that associations could (and should) implement was compliance with the law governing the proper display or use of the flag.

Fast Forward to Today
We hoped this issue was behind us, but it is not.  Local and out-of-state media reported a situation this week involving a Boston condominium unit owner allegedly being fined for displaying the American flag in his window and refusing to remove it even though it violates the association’s “white curtains only” window coverings policy.  (This rule is typically passed pursuant to an architectural integrity clause in the governing documents or contained within the restriction itself.)  The association said it was only responding to complaints from other unit owners, but the unit owner responded that “freedom was being lost.”  And once again, patriotism was at odds with private property regulations.

What is our counsel to associations that are wondering what their stance should be in similar circumstances?

I don’t advocate a rush to judgment here because of the many unknown particulars associated with this case.  For example, I don’t know if this association has a flag policy, has common element on which a flag pole could be erected if the unit owners wanted to do so, has regulations concerning the size and number of flags that may be displayed or any other regulations permitted under the 2005 Freedom to Display the Flag Act or as originally suggested in the 2001 CAI Federal Flag Policy.  I also don’t know when this flag is being displayed—and before we criticize the board, it should be noted that the Federal Flag Act provides that the flag is customarily displayed “from sunrise to sunset.”

What I do know is that it is sad this case is receiving publicity that tends to reflect negatively on community associations as we approach the anniversary of one of the most horrific yet unifying days in our country’s history.

Accordingly, we advise boards to review their governing documents in light of the information presented here.  We also caution that any rule governing the display of the American flag should, as urged by CAI, be reasonable and must comply with the requirements of the Federal Flag Code.  Finally, we hope that the board in question here quickly finds a resolution that unites the association and serves the interests of the community while respecting the rights of an individual owner.

For more information about this and related association issues,  please visit www.goshlaw.com. You can also contact Ellen Shapiro at shapiro@goshlaw.com.