Legal Lis: Homeowners Association Battles with an Elderly Veteran over a Flagpole

An 82-year-old man and his wife have recently been fielding letters from their homeowners association related to the flagpole they have in their front yard. The couple was first told in September that their flagpole should be removed from the front yard because it was not mounted to their home. But Bob Willits, who served four years during the Korean War, and his wife, Judy, are fighting the requests from the Fieldstone Homeowners Association.

At first blush, it’s hard for me to imagine why a homeowners association would be so set on fighting a flagpole. As far as I can tell, it isn’t blocking a public sidewalk, it’s not endangering people in the neighborhood, and there’s nothing obscene of offensive being flown from the flagpole. No, it’s seems to be just two people intent on expressing their patriotism.

Beyond this, though, there’s also the fact that there’s something called the Freedom to Display the American Flag Act of 2005, which intends to prevent the likes of a homeowners association from restricting homeowners when it comes to displaying the U.S. flag on their property.

For the legally inclined, here’s the text of the American Flag Act:

SECTION 1. SHORT TITLE.

This Act may be cited as the `Freedom to Display the American Flag Act of 2005′.

SEC. 2. DEFINITIONS.

For purposes of this Act–

1. the term `flag of the United States’ has the meaning given the term `flag, standard, colors, or ensign’ under section 3 of title 4, United States Code;

2. the terms `condominium association’ and `cooperative association’ have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603);

3. the term `residential real estate management association’ has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and

4. the term `member’–

(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association;

(B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and

(C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.

 SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES.

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

SEC. 4. LIMITATIONS.

Nothing in this Act shall be considered to permit any display or use that is inconsistent with–

1. any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or

2. any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

According to the homeowners association, it has authority to request the removal of the flagpole under Section 4, Part 2. Evidently, it believes that it has a substantial interest in restricting the “time, place, or manner” of the Willits’ flagpole.

What do you think? Does the Homeowners Association have the right to make this request? Is there a substantial interest?

Hear my thoughts on the Legal Lis podcast: http://foxrad.io/1zKC1Jn