Under the Freedom to Display the American Flag Act of 2005 (the “Act”) community associations are not permitted to ban owners from displaying the American flag on the owner's unit, lot or in any area where the owner has exclusive use or possession. However, the Act does permit community associations to place reasonable regulations on the time, place and manner in which the American flag is displayed, including the regulation of flagpoles.
However, the General Assembly of the State of Delaware has further limited a community association’s ability to regulate flagpoles through recent amendments to sections of Title 25 for the stated purpose:
… to permit a real property owner or tenant to display an American flag on a pole attached to the exterior of the property’s structure or on a flagpole located within the property’s boundaries, provided the flagpole does not exceed 25 feet in height and conforms to all setback requirements. Any and all community restrictions to the contrary will not be enforceable.
Previously, the Delaware Unit Property Act and the Delaware Uniform Common Interest Ownership Act expressly allowed for the display of the flag of the United States of America, measuring up to 3 feet by 5 feet, but only “on a pole attached to the exterior wall” of a unit owner’s unit or the limited common elements appurtenant to that unit.
The previous statutory language requiring the flagpole to be attached to an exterior wall became a point of contention for one Delaware community. In that community, the governing documents strictly prohibited free-standing flagpoles. Nonetheless, the board gave special, temporary permission to a homeowner whose son was serving in the armed forces overseas to put up a free-standing flagpole, with the understanding that the pole would come down when the son returned. However, even after the son returned to the U.S., the homeowner wanted permission to retain the flagpole.
As tension surrounding the issue grew, legislation was introduced to amend Delaware law to expressly allow preexisting flagpoles to remain in place for the sole purpose of displaying the American flag, and to explicitly state that a flagpole could be located within the "property's boundaries," not necessarily attached to an exterior wall. Finally, the new amendments sought to make clear that community associations may not adopt certain rules pertaining to the installation of flagpoles.
These amendments leave open the question of what is intended in the Delaware statute by the undefined phrase "the property's boundaries." It is unclear why the amendment did not utilize the statutorily defined terms of unit, common element or limited common element, each of which has a precise meaning within the Delaware Uniform Common Interest Ownership Act. It will be interesting to see if unit owners in common interest communities try to use these code sections to install free-standing flagpoles on limited common elements adjacent to their units or, indeed, on the broader common elements.
Finally, it is worth noting that the Delaware code amendments relate only to flying the flag of the United States of America. As reflected in the Delaware House Administration Committee Meeting minutes, the sponsoring representative emphasized that the bill was American flag specific and did not apply to any other flags such as a Confederate flag or those of other nations.
By comparison, Virginia Code sections (Va. Code § 55-513.1 of the Property Owners’ Association Act and § 55-79.75:2 of the Condominium Act) provide that no association shall prohibit an owner from displaying the U.S. flag on his own property as long as the display conforms to federal law, rule or custom. The association bears the burden of proof to show that its "restrictions as to the size, place, duration, and manner of placement or display" of flags are "necessary to protect a substantial interest" of the association.
Prior to this provision being added to the POA and Condo Act there was a case in Henrico County, Virginia, where an association filed a lawsuit against an owner for his failure to comply with its rules related to flag poles. In Re: The Wyndham Foundation, Inc. v. Oulton, et al., 56 Va. Cir. 217 (Henrico Co., 2001), the association filed suit against the owner who had erected a large flagpole on their lot without obtaining prior design approval, as required by the association’s governing documents. The association argued that the flag pole did not comply with the association’s regulations regarding the erection of structures. The court found that the pole was a "structure" that was regulated by the covenants and restrictions, and concluded that the flag pole had been erected without the required preapproval from the association and, therefore, should be removed.
Maryland Real Property Code Section 14-128 governs the display of flags by homeowners. It specifically applies to Condominium, Homeowner, and Cooperative Associations. It voids any prohibition on the flying of the United States flag in an Association’s governing documents.
An owner is entitled to display on his/her property one portable, removable flag of the United States. Such display must be consistent with the requirements of 4 U.S.C. Section 4-10 and subject to reasonable rules adopted by the Board of Directors. Some of the restrictions in the US Code include, display of flag from sunrise to sunset; no display at night unless lit; no display during inclement weather unless it is an all-weather flag, and the flag is never to touch the ground. The Board’s rules can address placement and manner of display of flag. An example of a rule would be to limit the size of a flag pole upon which the flag is displayed.
Before adopting any rules or regulations on flags, the Board must provide advanced notice of the proposed rule to the owners, hold an open meeting on it, and provide owners with an opportunity to be heard at the meeting on the proposed rule before voting on it.