Blog Post
Can the HOA regulate flags on your property?
Appfolio Websites • Sep 10, 2020
What can you do if your neighbor displays a flag in support of the Atlanta Falcons?
Flags are often seen in neighborhoods flying in support of a favorite sports team, as a holiday decoration or in support of our great nation. So what's the problem, you may ask?
What happens when a holiday flag is left up all year? Or if the size of the flag obstructs common areas or creates a potential hazard? What happens when one neighbor is a staunch Republican flying a flag in support of President Trump and another neighbor finds that flag offensive? If you think that's a tough question to answer, just imagine what you would do if you're from New Orleans and a neighbor flew a flag in support of the Atlanta Falcons!?! It can happen!
This article will explore a few of the laws that should be considered by an HOA when attempting to regulate flags within their association.
STATE AND FEDERAL LAWS MAY APPLY
In 2005 Congress passed the Freedom to Display the American Flag Act
which prohibits real estate management companies, including HOAs, from enacting rules prohibiting the display of the American flag by its members. While homeowners enjoy the right to display an American flag, HOAs do have the ability to regulate the manner in which it may be displayed as long as the regulations are narrowly tailored in favor of a substantial community interest. For example, unstable flagpoles or large flags that create a hazard by blocking sight lines may be restricted in favor of the safety of all residents.
In addition, federal Fair Housing laws prohibit an HOA from restricting flags for reasons based on national origin, sexual orientation or other protected classes. An example of this would be a homeowner flying a rainbow flag in support of LGBTQ issues and being asked to remove it. Such a request may violate Fair Housing protections if the request is based on a person's sexual orientation.
State laws often provide additional protections for military and state flags.
The American flag is a powerful symbol that means a lot to most Americans. HOAs should always be respectful of the patriotic values of their homeowners but, at the same time, avoid the appearance of impropriety by strictly enforcing rules and regulations fairly throughout the association.
In addition to the US Flag Code, here are a few best practices for flying the American flag:
- The flag should never touch the ground or anything beneath it;
- There should be no insignia, markings or other attachments to the flag;
- It should be displayed from sunrise to sunset. If a homeowner wants to fly the flag at night it should be properly illuminated;
- On Memorial Day the flag should be flown at half mast until noon and then promptly raised to the top of the flagstaff until sunset; and
- The flag should not be displayed in inclement weather unless it is made of weather resistant material.
TRUMP V. BIDEN
Now to the really juicy stuff.
What does an HOA do when a homeowner is flying a flag in support of a presidential candidate and it is found to be offensive to another? Does the HOA have the right to restrict a homeowner from flying a flag endorsing a political candidate? What is the Board of Directors to do when faced with a request to have a homeowner remove a flag endorsing a candidate? Equally as important, what are a homeowners rights when a Board is one political affiliation and the homeowner is another and the request appears targeted?
It is important to remember that Freedom of Speech is not lost in the association's right to regulate issues in favor of the community as a whole. When wrangling with this issue, HOAs should consider whether this is an issue worth delving into on behalf of the association because, like religious views, political views produce strong emotions on both sides and litigation over disputes can be costly.
Another approach to consider would be permitting political signage but regulating the time, place and manner in which it's displayed.
Examples of reasonable regulations include:
- Signage allowed 45 days prior to an election
- Signage must be removed within three (3) days of an election
- Signage cannot contain profanity
- Signage must be limited in number
- Signage should not exceed the size of permissible real estate signage
SAINTS V. FALCONS
Saints flags should be allowed and Falcons flags should be prohibited.
FLEXIBILITY = COMPLIANCE
Whether it's a fall pumpkin, a baby announcement or a flag congratulating a recent graduate, HOAs can achieve the goal of preserving the aesthetics of the association by ensuring the rules enacted are clear, narrowly tailored to accomplish an association wide goal and fairly enforced. It is equally as important to be flexible and adapt to current conditions to maintain a harmonious association.
An example of strict rule enforcement backfiring surfaced during the COVID-19 pandemic when school aged children were quarantined causing many of them to miss prom, graduation and other milestone events. Many families reacted to the unfortunate situation by erecting signage congratulating their graduating Seniors on their accomplishments. Some schools even went so far as to place signs in the yards of their graduates.
A local HOA sent violation letters to these homeowners requesting the signs be removed because they were not permitted.
Was the HOA correct? Technically, yes. The association's Covenants and Restrictions prohibited signage other than "For Sale" or "For Lease" signage within a certain size.
Was sending out violation letters in the midst of a global pandemic the right move? Probably not. The Board was met with a flood of hostile responses and a social media circus ensued.
In the above example, flexibility would have been a preferable approach. Sending a letter congratulating the graduates but politely asking all signage be removed by a certain date could have accomplished the goal of sign removal and likely yielded a great deal of voluntary compliance.
The success or failure of these disputes will likely land on social media and will be a reflection of your community. To position your association for success in the event of a disagreement, it is important to not appear overly restrictive or power hungry. In the inevitable event of non-compliance it's important to carefully consider the violation and seek legal guidance when appropriate. Like any violation, offering solutions is always preferable.
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By now most of us have seen GEICO's attempt a HOA humor. In a recent ad campaign homeowners are seen raving over their new neighborhood but sarcastically state "the HOA is very involved." If you haven't seen it, click here for your laugh of the day. At the outset, let's acknowledge it for what it is - humor. It's GEICO's spin on extreme HOA board members in an effort to get homeowners to purchase insurance through their company. Here we are blogging about it, so their advertising probably worked. So why did the Community Associations Institute (CAI) issue a statement against it inviting GEICO to make another ad reflecting more of the reality of board participation? The answer is simple. The ad does not reflect the reality of the more than 2.5 million volunteers who serve the communities in which they live. According to the 2018 Homeowner Satisfaction Survey , independently conducted by Zogby Analytics for the Foundation for Community Association Research, residents in associations are overwhelmingly in support of their community association experience, manager and elected board members. HOA board members are VOLUNTEERS who offer their time and talent to help maintain and improve the associations in which they live. The actions of board members are designed to keep the association in the same or better condition then when your home was purchased. However, some homeowners do not see it that way. The internet is replete with HOA memes and members complaining about violation notices or liens for not paying their dues timely. So, do "Cynthias" really exist? Sure they do. But they are the exception, and not the norm. At the core of most HOA criticism are members who routinely violate HOA rules, forcing enforcement actions to be taken. Interestingly, when people purchase homes in restricted communities, they are agreeing to abide by the rules in place for their respective subdivisions. It is not until they are the subject of an enforcement action that the rules become problematic. One solution to this problem is for homeowners to know and understand the rules that apply to their association BEFORE they purchase in a restricted neighborhood. For example, if you have a 40' motorhome and want to keep it in your driveway, you should check with your real estate agent to ensure this won't be a problem before you start viewing homes to purchase. If your significant other can't wait to paint the front door red, check with your real estate agent to ensure painting your new front door is allowable. A good real estate agent will get to know their clients and identify these issues before suggesting homes to view. At the end of the day, the rules run with the land. As a homeowner, you are agreeing to abide by the rules in place when you purchase a home in a restricted community. Read here for our tips on what to do if you receive a violation notice from you HOA. If you are still confused about who is making the rules, or how to propose changing them, be sure you understand the difference between board membership and property management. At the end of the day we can all agree on one thing - homeowners purchase in their association because they like the way it looks. In the United States today there are more than 351,000 homeowners associations because homeowners want to know that their largest investment is protected. Be sure you understand the rules of the association before you agree to purchase a home in a restricted community. Chances are you will appreciate most, if not, all of them. If the rules do not comport with your lifestyle, it is better to know that before making an offer. We hope you enjoyed our take on GEICO's HOA humor. For more information on effective property management, call Gulf South Property Management at (985) 200-0660. Our goal is effective, affordable property management. We promise to keep the "Cynthias" in check while fairly and effectively enforcing the rules of your community.
Gulf South Property Management is a leader in supporting HOAs during the COVID 19 pandemic.
We often hear that the “HOA Nazis” are out to get them. With nothing better to do with their time, they spend hours upon hours looking for infractions and sending out senseless violation notices. Who are these people and who do they think they are?!?
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TheBoard of Directors has responsibility for managing the association’s finances and creating budgets that allow a community to preserve property values. A major part of this fiduciary responsibility is the board’s responsibility to budget for future repairs or unanticipated expenses. To accomplish this goal, an up-to-date reserve fund is critical to the financial management of a community.
