Question:: Our son is in the Air Force Reserve, and his unit has just been activated. To show our support -- for our son and our Country -- we want to fly the American Flag from the balcony of our condominium apartment. However, we have been advised by our property manager that the architectural control covenants in our Association prohibit flying anything -- including the flag -- from our balcony. Isn't this a violation of our right to free speech -- in addition to being non-patriotic?

Answer: Fly your flag -- and do it with pride. I seriously doubt that your Association will have the nerve to try to stop you.

Flag flying controversies are not new in community associations -- but have now come to the forefront as a result of the September 11th tragedies. Over the years, there have been many controversies -- and much litigation -- where associations found it necessary to enforce their restrictive covenants against an owner.

Indeed, just last year, the Virginia legislature enacted what is referred to as the "Wyndham Flag Bill", after the Association filed suit against a Vietnam veteran who installed a 20 foot high flag pole in his front yard. That law permits homeowners the right to fly their flag -- so long as the architectural standards are met.

Many community associations have architectural control covenants contained in their legal documents. These covenants -- which are binding on all owners -- often spell out what can and cannot be done within the community. Often, before a structure -- such as a fence, a deck or even a flag pole -- can be installed on the outside of the unit, the homeowner must submit plans to an architectural control review Board for approval.

Many owners object to such review, claiming that it is often subjective, and often arbitrary. However, these design reviews have at least two purposes: to establish and preserve a harmonious design for a community and to protect the value of the property.

When one buys into a community association, one must understand that it is community living. Decisions cannot be unilaterally made, nor can the rules and regulations of the association be unilaterally ignored.

One might disagree with the need for external uniformity, for example, but the fact remains that if the association documents require external uniformity, that is the law of the association and is binding on its members.

While we all endorse the concept of free speech, we must understand that our Constitution specifically states that "no government shall prohibit free press and speech". Although a community association is, in effect, a mini-democracy, there unfortunately is no free speech protection when the association attempts to ban the flying of the American flag.

Having said this, however, we have to be realistic -- and patriotic.

On September 13, 2001 (just two days after the terrorist attack) the House of Representatives passed a Resolution stating:

For a period of 30 days after the date on which this resolution is agreed to, each United States citizen and every community in the Nation is encouraged to display the flag of the United States at homes, places or work and business... to remember those individuals who have been lost and to show the solidarity, resolve, and strength of the Nation.

Recognizing that patriotism is important during these trying times, the Community Association Institute (CAI) recently asked all community associations throughout the United States to take steps to enable residents to respond to the Congressional resolution. According to the CAI:

For many people in the United States, the community is the starting place for the process of both coping and healing after the September 11th attacks. With more than 40 million Americans living in association-managed planned communities, condominiums and cooperatives, it's only reasonable that everyone have an opportunity to demonstrate their patriotism by flying their flags.

Accordingly, the CAI asked those community associations that have rules prohibiting the flying of flags to place a six-month minimum moratorium on enforcing those rules. A sample resolution for associations to adopt can be found on the CAI website.

CAI is calling for a six-month minimum moratorium; I call for a complete repeal of any covenant which restricts community association owners from flying the flag of our country. CAI apparently recognized the need -- indeed the national desire -- to fly the flag, and its proposed resolution also states that "notwithstanding any provision in the governing documents to the contrary, residents may display one American flag on the following days each year: Independence Day, Martin Luther King, Jr. day, Veterans Day, Presidents Day, Memorial Day, Labor Day, Columbus Day, Thanksgiving Day, New Years Day, September 11, December 7 and (of course) Flag Day."

Community Association board members should heed the call of the CAI -- and of the patriotic Americans throughout the country. Permanently repeal any prohibition -- called a restrictive covenant -- which has the effect of limiting the right of the Association members to fly the flag whenever -- and wherever -- they chose.

And homeowners must also understand that there are statutory rules (called the "Federal Flag Code") spelling out the proper procedures for displaying the flag. Homeowners who ignore these rules should be chastised by their Association.

This issue has plagued community associations for a long time. The time has come for associations to recognize that banning flag flying is not only unpatriotic, but is potentially detrimental to the concept of community living. The current national crisis should be a wake-up call and a catalyst to changing many of the archaic (and often unreasonable) architectural control covenants found in many Association documents.

Rules for Flying the American Flag

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission's real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.