In July, the General Assembly of the State of Delaware amended several 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 limitation requiring the flagpole to be attached to an exterior wall became a point of contention for one of our client associations, and the association sought guidance. In this case, 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 the tension surrounding the issue grew, Representative John C. Atkins introduced legislation to amend the law to expressly allow certain preexisting flagpoles to remain in place for the sole purpose of displaying the American flag, and to clarify that the 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 rules pertaining to the installation of flagpoles.
These amendments leave open the question of what is intended by the undefined phrase "the property's boundaries." It is unclear why the amendment did not utilize the previously 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 amendments relate only to flying the flag of the United States of America. As reflected in the House Administration Committee Meeting minutes, Representative Atkins 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.