HOAleader.com - Tip of the Week - August 20, 2021
Published: Fri, 08/20/21
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HOAleader.com - Tip of the Week - August 20, 2021
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In this week's tip, we address an issue that's going to become hotter in the next few months—whether your ability to regulate flags extends to pride flags.
Here's why: June is typically LGBTQ+ Pride Month, when members of the LGBTQ community celebrate (and it was designated as such in 2021 by presidential proclamation). However, the pandemic upended the 2021 calendar, and many communities postponed their usual June parade to the fall. Lexington, Ky., for instance, will have its parade Sept. 25. Chicago will host a parade Oct. 3. Las Vegas is right after, on Oct. 8.
As the postponed parades take place, you may see more flags in your community. Is it OK for those to be flown, or can you regulate those as you'd regulate other flags?
It's common for condos/HOAs to prevent owners from flying flags, except for the Stars and Stripes. But more and more and more HOAs are running into arguments with owners over pride flags, and owners are pushing back.
Some states have created laws that apply to condo/HOA regulation of flags, and that should be your first stop in evaluating how to handle any owner's flag that's visible to the community.
"Tennessee has a really cool flag law, and the federal government has a flag law," reports Scott D. Weiss, CCAL, a community association lawyer at Ortale Kelley in Nashville, Tenn., who represents more than 650 condos/HOA communities throughout the state. "We passed this law here where you can't prohibit homeowners from flying the American flag or any flag of the U.S. armed forces."
The federal law Weiss is referring to is the Freedom to Display the American Flag Act. Its mandate is simple: It prohibits condos, co-ops, and HOAs from adopting or enforcing any policy preventing a member from displaying the U.S. flag on the owner's property.
Other flags, such as pride flags, aren't mentioned in that federal law, nor are they typically mentioned in state laws. "I think this is an area in which we'll likely see more activity in the future, whether it be pride flags, Black lives matter signs, or blue line flags," says Stephen G. Davis, a Missouri- and Illinois-licensed attorney at Carmody MacDonald in St. Louis, which represents about 200 condo and HOA communities. "I expect we'll see more of these issues come to the courts in the not-too-distant future. It's certainly a ripe topic, and there are high emotions on both sides."
Let's start with the basic idea that, despite the First Amendment, your condo or HOA can regulate speech uttered through signs and flags. "Associations aren't subject to the First Amendment," explains Weiss. "When homeowners say, 'You violated my First Amendment rights,' what they don't realize is that the First Amendment impedes the government's action, not that of HOAs. HOAs are governed by contracts. When you get a deed for a property, you're agreeing to be bound by the terms of that contract."
Even if you're regulating flags and signs in your community, pride flags don't easily fit into either definition. Find out why in our new article: https://www.hoaleader.com/members/4375.cfm
Best regards,
Matt Humphrey
President
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