Can Your HOA Prohibit You From Flying Your Favorite Flag?

Flags are common yard decorations: Drive around any community and you'll see everything from holiday flags to sports team banners. If you live in a planned development, however, hanging your favorite flag might result in a demand from your homeowners' association (HOA) to take it down.

Can your HOA really ban you from flying a flag? The answer depends on:

• what type of flag it is
• where you live, and
• how you display the flag.

We'll discuss all these considerations and their impact on the analysis below.

State and Federal Laws Protect Some Flag Displays

If the flag your HOA is prohibiting is the good old stars and stripes, the HOA is probably out of line. Your right to display the United States flag is protected by federal law. The Freedom to Display the American Flag Act of 2005 makes it illegal for an HOA to restrict owners from displaying a U.S. flag.

Your HOA can, however, reasonably restrict the time, place, and manner of your flag display (provided the restrictions are to protect a substantial interest of the association). For example, your HOA can ban a U.S. flag that might be a danger, such as one on a rickety flagpole over a public sidewalk. The HOA probably also has the right to prohibit a flag so large it blocks a neighbor's views.

Check your state's laws, also. Some states prevent HOAs from banning certain other types of flags, such as Native American flags, state flags, or official U.S. military flags. As with federal law, state laws typically still give the HOA the right to reasonably regulate such things as the location and size of flags.

Check for Flag Restrictions in Your Development's Governing Documents

If your flag is not a type that's protected by federal or state laws, whether your HOA can prohibit it depends on your development's governing documents (such as its articles of incorporation and bylaws, Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) and other rules and regulations.) You can get a copy of these from your HOA. You might also ask the HOA what provisions it is relying on to ban your flag.

Many developments don't outright ban flags, but instead restrict their size, type, or location. For example, a development might allow "holiday flags only," and restrict them to a time period near the relevant holiday. This typically means an owner can freely display a (seasonally appropriate) Christmas or Thanksgiving flag.

However, finding a holiday that justifies your flag-flying might not always work. The HOA can prohibit any flag not representing an official federal holiday, such as sports team banners flown on the day of a big game, or a rainbow flag flown on the day of a pride parade.

Can HOAs Limit Flags Even Without Written Restrictions?

If your HOA's governing documents are silent on flag displays, it might have no authority to prohibit your flag. Perhaps it is relying on an overly broad, subjective power (such as a regulation allowing the HOA to prohibit anything it considers "aesthetically unappealing"). If so, the provision might be unenforceable.

You can enlist the help of an experienced attorney in your area to review the governing documents and help determine whether you have a basis to challenge the HOA's prohibition of your flag. Of course, since this requires an investment of time and money, you'll want to evaluate how much flying that flag is worth to you before going this route.

Is the HOA's Flag Ban Discriminatory?

You might also challenge your HOA's prohibition of your flag if the HOA's action is discriminatory.

The federal Fair Housing Act prevents discrimination based on a homeowner's race, color religion, gender, familial status, disability, or national origin.

Additionally, some state laws extend discrimination protection to such categories as marital status, ancestry, and sexual orientation. Someone might claim discrimination, for example (in a state where sexual orientation is protected), if the HOA prohibits a rainbow flag because of the flag owner's sexual orientation. Or if the HOA prohibits a Native American symbolic flag, the owner might claim discrimination based on national origin.

Proving a case of discrimination is difficult, however. HOAs can (and do) claim that the flag prohibition is for aesthetic reasons only. Proving otherwise is typically challenging. Unless you have a "smoking gun" (such as HOA meeting notes stating a discriminatory reason for banning a flag), the chances of success in a discrimination case are not high.

Is the HOA Being Selective in Who It Enforces the Flag Ban Against?

Even if you can't prove discrimination, if your HOA does not consistently enforce the flag regulations, you might have a legal argument that it has, in effect, waived them.

For example, if you live in a community with a "federal holiday flag only" rule, you might have noticed that the HOA never enforces the rule, allowing all sorts of "noncompliant" flags; for example, flags depicting clovers on St. Patrick's day or pumpkins on Halloween. However, as soon as you fly your rainbow flag, you immediately receive an HOA notice demanding you remove it.

In such a case, you might not need to comply with the HOA demands if you can show that the HOA routinely ignored the development's flag regulations, and unfairly and arbitrarily singled you out for enforcement. Again, however, this would require taking legal action against the HOA (or at least hiring an attorney), with no guarantee of success.

Amending an HOA's Anti-Flag Regulations

If your HOA is appropriately enforcing a valid regulation with which you disagree, you could try to amend its flag rules. This will not be an easy process.

Amending CC&Rs, for example, commonly requires the vote of all the owners in the development. Amending HOA rules and regulations might require the vote of the HOA board of directors. An experienced attorney can advise you on the necessary steps for an amendment.

When You Must Remove Your Flag

If your HOA validly requests you remove your flag, the best thing to do is probably to bite the bullet and do so. Noncompliance might result in HOA penalties and fines. Although you might have some basis for refusing to comply with your HOA's demands, or desire to change the regulations, in the end you'll need to decide whether flying your flag within a community that's opposed to seeing it is worth fighting for.