HOA vs. Old Glory
As we approach the Fourth of July, you and many of your neighbors are probably planning to fly the American flag. However, if you live in a community governed by a homeowners association, this benign act of patriotism may be against the rules. In fact, a quick Google search reveals pages full of news articles pitting HOA’s against owners who want to display the American flag. For both the HOA and the owner wanting to fly old glory, they need to consider the restrictions set out in statute and the association’s governing documents.
Display of flags is protected both by federal and Colorado law. Federal law does not allow an HOA to forbid the display of the American flag (Freedom to Display the American Flag Act of 2005, 4 USC 5). However, HOA’s may reasonably regulate the time, place, and manner of the display if they show that doing so is necessary to protect a substantial interest of that HOA. There is not much case law that articulates exactly what would qualify as a “substantial interest.” Generally, it may need to be something more like protecting homeowners from danger, not just protecting homeowners from something that they consider unsightly.
Colorado statute also restricts an HOA’s ability to forbid the installation of a flagpole. Colorado Revised Statute 39-33.3-106.5(1) states: “The association rules may regulate the location and size of flags and flagpoles, but shall not prohibit the installation of a flag or flagpole” If an HOA’s disapproval of a flag or flagpole lacks an explanation, the rule can be read as a blanket disapproval of flagpoles. This is contrary to Colorado statute.
The Association’s governing documents may also include rules concerning display of flags. Many HOA’s allow for the display of the American flag on specific holidays and so long as the flag does not exceed a specific size and complies with the Federal Flag Code, 4 U.S.C. 4 to 10. These could potentially be considered reasonable regulations of the time, place and manner for display, as allowed in the above explained laws. However, the burden is on the HOA to prove that these restrictions are necessary to protect a “substantial interest.” It may be difficult for an HOA to prove that these restrictions are necessary if the HOA allows other similar structures. For example, if the HOA allows basketball hoops, they clearly don’t feel the need to protect against poles in a homeowner’s yard.
While the above information can help all parties be aware of the legal boundaries for this issue, the best bet is usually for all parties to communicate and work out a compromise. Are there any specific facts about the owner that makes flying the flag or using a flagpole particularly important? Are they a veteran? Or have a family member who serves? Do they need to use a flagpole because there is nowhere else on their house where they can display a flag? Or is displaying a flag on their house difficult for medical reasons? Also, how do the neighbors feel about display of the flag? If all of the neighbors approve, the HOA may be more interested in granting an exception. A mutually satisfactory result is much more likely when both the owner and the HOA understand that both parties are still people, and more importantly, neighbors.
