Did you ever hear the internet rumor about the HOA that told a homeowner he couldn’t fly his American flag because it offended his neighbors, and so he painted his entire lawn as the stars-and-stripes to get back at the HOA while displaying his patriotism? It turns out that, like a lot of internet rumors, it was an online hoax (there is a photo of a man who painted a lawn as an American flag but it was done as a welcome-home gesture for a returning Marine). But the reality is that flying flags in a shared community can go beyond patriotism to being an eyesore or annoyance in some cases (think the out-of-towner who insists on flying his huge, gaudy alma mater flag that just happens to be the rivals of the hometown favorites) or meant as a divisive, intimidating gesture to others (think flying a Nazi flag). Whether the HOA wants to maintain an aesthetic feel to the neighborhood, or it aims to reduce inflammatory gestures meant to divide, is there anything an HOA can do to enforce or restrict flag use?
Creating HOA Rules Regarding Flag Use
As with most HOA issues, the first thing the HOA needs to think about is whether there is anything in the existing CC&Rs which relates to the display of flags specifically or other types of outdoor ornament or decoration. There may be vague rules about the HOA having the ability to preserve the common aesthetics of the community, but, if that is the closest rule in the CC&Rs, the HOA may run into trouble enforcing that rule against a flag-owner both due to vagueness and questions about selective enforcement if there are other outdoor displays that arguably do not fit into the community aesthetic.
In drafting a flag-related rule for the CC&R, the HOA is advised to work with an HOA attorney to avoid running into local, state, and federal rules that might supersede the rule. First off, an HOA should never make a rule banning American flags as they are specifically prohibited from doing so by the Freedom to Display the American Flag Act of 2005 (not to mention the negative reaction such a rule would engender), although that federal law does give the power to HOAs to create reasonable restrictions on the size and placement of American flags. Note also that an HOA can validly prohibit the placement of flagpoles on the property, even if the poles in question are there to fly the American flag.
As for other types of flags – whether it be a sports team flag, a Confederate flag, a gay pride flag, a religious-themed flag, a Blue Lives Matter or a Black Lives Matter flags, or anything else your residents may feel compelled to fly – this is where working with an outside HOA lawyer who can navigate any tricky local, state, or federal rules relating to free speech comes in handy.
Arizona Provides Stronger Protection For Specific Flags
For those HOAs operating in Arizona, there are additional state-specific rules regarding flags to be aware of which go above and beyond the federal protection for the American flag. In addition to the American flag, pursuant to ARS 33-1808(A), Arizona HOAs cannot prohibit the flying of the following types of flags:
- Army, Navy, Air Force, Marine Corp, or Coast Guard flags
- POW/MIA flags
- The Arizona state flag
- Any Arizona Indian nations flags
- The Gadsden flag
Unlike the federal law, Arizona HOAs also cannot prohibit flagpoles for these types of flags. They may however place reasonable regulations on the display of the flags, may limit a household to two flags, and may limit the size of flagpoles to be no higher than the roof of the home.
Enforcing HOA Rules Against Flags
If your HOA has completed the challenging work of creating a flag-related rule that complies with all applicable laws while honoring the wishes of those in the community, enforcement should be a more straightforward (if not necessarily stress-free) task. The key is avoiding selective enforcement, not just because HOAs should always avoid selective enforcement for both practical and legal purposes, but doing so will help the HOA avoid legal claims of discrimination.
For example, you do not want to enforce a rule against homeowners of a certain religion from displaying their flag on a holiday while allowing other homeowners of a more dominant religion to freely display their flag, and doing so could invite both unwanted attention in the press and the courts. Again, speak to an HOA attorney for further guidance on enforcement.
Contact an HOA Lawyer for Further Help
At Goodman Holmgren, our sole focus is on meeting the legal needs of HOAs, including creating and implementing HOA policy and responding to homeowner concerns. Contact us today to discuss any legal challenge your HOA is facing.