Recently our law firm was approached by an HOA that wanted to restrict its residents from continually flying the American flag. Needless to say HOA members and other Utahns were outraged over any restrictions regarding the American Flag. Local and national television and online media outlets happily covered the story and the ensuing controversy.
Now let me be clear, I have great respect for the American flag. My grandfather was a decorated soldier in World War II who spent hours at the University of Utah documenting his war time experiences. Through my discussions with him I learned about the sacrifices that so many have made to preserve the amazing freedoms that we enjoy in this country. These freedoms are symbolized by our beautiful flag. That being said, it is easy to lose sight that among these cherished freedoms that Americans enjoy, are the freedoms of expression and speech, freedom of association, and the freedom to contract.
By purchasing a home in an HOA or Condo development, homeowners become members of an Association, and obligate themselves to adhere to legally binding contractual duties, that we commonly refer to as CC&Rs. These CC&Rs are often complex and difficult to read. Just peruse this informative Wikipedia entry for a taste of the complexity of condominiums. (Notably – America’s first modern Condo project was developed in Utah.) Due to the complex nature of CC&Rs, HOA members commonly fail to fully understand or appreciate the restrictions on their ownership rights.
In the recent media coverage, the outraged homeowners turned to the Freedom to Display the Flag Act of 2005, to oppose the HOA’s rule restricting the placement of the American flag.
However, a careful reading of the Flag Act, which is also incorporated into Utah law reveals the Flag Act does not completely override an HOA's CC&Rs.
Utah Condominiums may restrict owners from affixing the American flag on any area in which the resident does not maintain exclusive use and control. In plain terms, the HOA can restrict flag flying in the HOA common areas. The common areas in a condominium project typically include the surrounding landscaping and the entirety of the exterior of the buildings, including roofs, siding, stucco, etc. HOAs often impose restrictions on flag flying to prevent unnecessary holes and fixtures in roofs and walls that can lead to water leaks and property damage, which the HOA would become responsible to repair; or, to preserve a common and uniform appearance throughout the development. Thus, under both the CC&Rs and the Flag Act, HOAs hold a broad legal right to restrict the location of flag flying.
It is important to remember that when you purchase in an HOA you could be contracting away certain “property rights” or your freedoms of speech and expression. Remember that your first amendment rights prohibit the government from abridging your freedom of speech, but not necessarily a private HOA. The first amendment does not prohibit or prevent an individual from contractual limiting those speech rights.
Flying the American flag is an important and protected expression of patriotism. However, as the media failed to address, this protected expression is not an unlimited right. Now just because an HOA has the legal right to restrict something, doesn't mean that it should. HOAs and its members should work cooperatively to achieve solutions to allow our flag to fly in a way that allows the expression of patriotism, enhances the aesthetics of the community, and simultaneously prevents property damage.
If you have questions about your HOA's enforcement rights and contractual duties please don’t hesitate to contact our office.