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Freedom to Display the American Flag Act of 2005—again

cropped-flag-white-houseThere have been stories all summer about owners and renters running afoul of their neighborhood HOAs and condo/apartment complex management over flying the U.S. Flag. So it is time once again, to review the Freedom to Display the American Flag Act of 2005. The Daily Flag lists the Act under the tab Flag FAQ, but maybe this topic needs its own tab for awhile.

The Freedom to Display the American Flag Act of 2005 states that 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 an association member from displaying the U.S. flag 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. (all emphasis is mine)

It states that nothing in this Act shall be considered to permit any display or use that is inconsistent with: (1) federal law or any rule or custom pertaining to the proper display or use of the flag; or (2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag necessary to protect a substantial interest of the condominium, cooperative, or residential real estate management association.

In plain language


What does this mean in plain language? It means that you have the right to fly the flag on your property, within certain limits. What are those limits? That may depend on where you live. Your HOA (Home Owners Association) may forbid a flag pole in the middle of the yard. That’s considered a reasonable. But the HOA cannot forbid you to fly a flag from a modest pole from your door jam or front porch—that would be unreasonable.

Within the grounds of a condo or an apartment complex, management has an understandable and reasonable right to insist upon certain guidelines, and may forbid you from hanging a flag off your balcony (for example). But it cannot stop you from hanging a flag that is fully with the boundaries of your porch, or on your door jam—that would be unreasonable.

The first point is to find a solution that is agreeable to all parties concerned. The second point is to READ the fine print. Know what the rules are before making the commitment. You absolutely have the right to fly the American flag, but the size of the flag, and where you place it may not be your decision.

After the jump: The entire document titled Freedom to Display the American Flag Act of 2005.

[DOCID: f:publ243.109]

[[Page 120 STAT. 572]]

Public Law 109-243
109th Congress

An Act

.
To ensure that the right of an individual to display the flag of the
United States on residential property not be abridged.
<>

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <>

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.

[[Page 120 STAT. 573]]

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.

Approved July 24, 2006.

LEGISLATIVE HISTORY–H.R. 42:
—————————————————————————

CONGRESSIONAL RECORD, Vol. 152 (2006):
June 27, considered and passed House.
July 17, considered and passed Senate.

11 thoughts on “Freedom to Display the American Flag Act of 2005—again

  1. Can a us flag be flown at half mast to show respect for a deceased person?

  2. Hi Dona—Thank you for writing. Your short question has a very long answer.

    There are four “official” half-staffing days enumerated in the U.S. Flag Code:
    Peace Officers Memorial Day, May 15 (half-staff all day)
    Memorial Day, the last Monday in May (half-staff until noon)
    Patriot Day, September 11 (half-staff all day)
    National Pearl Harbor Remembrance Day, December 7 (half-staff all day)

    The President has the authority to order US flags at half-staff on occasions he deems appropriate, but according to the Flag Code these occasions will always include former presidents, vice-presidents, Supreme Court justices, members of Congress, and so on.

    A law enacted June 29, 2007, now gives governors (and the mayor of Washington D.C.) the final say over all facilities in their respective states. Public Law 110-41—the Army Specialist Joseph P. Micks Federal Flag Code Amendment Act of 2007, sponsored by Rep. Bart Stupak (D-Mich.), was named for a soldier from Stupak’s district killed in Iraq in 2006.

    The law gives the governor “of a state, territory or possession of the United States” the authority to lower the flag within his or her jurisdiction. It applies to any member of the U.S. military who dies while on active duty, regardless of whether the GI was killed in combat.

    However, in many towns across the country—mayors and country judges, fire chiefs, and others in positions of authority have assumed a level of responsibility that they do not have, and ordered the flags to half-staff to upon the death of someone local.

    I am against this personally, and I was not in favor of giving governors the privilege either. They have always had the option of ordering their state flag to half-staff.

  3. Your HOA (Home Owners Association) may forbid a flag pole in the middle of the yard.

    It is my opinion that if the yard is yours infront of a townhouse or townhouse condo and and the flagpole does not exceed the height of the structure, that a regulation forbidding it is unreasonable.

    Apartment condos are limited to bracket flags.

    Why do you feel differently and can you cite cases that have considered the issue?

    1. Hi Arthur. Please go back and read my article again. That word “may” means may be permitted by law. It doesn’t mean that I necessarily condone the practice.

      We are not in disagreement. The Freedom to Display the American Flag Act of 2005 says that the property owner must be allowed to fly the American flag on what is his unique property. However, what you and I (and the property owner) might consider his yard, could in fact be considered common public area by the HOA, especially in a community of townhouses, condos or apartments.

      Most HOAs “forbid” freestanding flagpoles because they fear the noise of the flag snapping in the breeze, or the chain or rope slapping against the pole will be a sound annoyance to other residents. That leaves the flag-flying owner with no choice except to display the flag within the carefully described confines of his property (porch, patio, door jam, etc.)

      The law compels the property owner and the HOA to find a compromise, and that could be different in every situation.

      Regarding cases to cite: I have “subscription topics” set up in Google reader to scan for stories about flags, so on any give day, I might find two or three stories from across the country about HOAs and property owners or renters getting crosswise over flying the flag. You might try a search using “Freedom to Display the American Flag Act of 2005” and/or Public Law 109-243. I think it would turn up a lot of old and new information about these cases for you.

      Thank you and Best Wishes, Deborah

  4. You should be able to display the flag any place on your property you desire without restriction by a home owner association. This flag stand represents the freedom we have and the price paid for that freedom. Also you should allowed to erect a flag pole if you so desire, whether it be a 20 foot pole or displayed on a 5 ft pole mounted to your house or gargage. I display three flags, the American flag, USAF and Marine Corp flags and are maintained properly by replacement when they start to fade or show wear and tear. Should anyone like to remove them, they will have a fight on their hands. I served my country for 21 years, protecting that flag and what it represents, so we could have a free country to live in and raise our children and families.

  5. wish somebody would explain my rights to our apartment manager. i display my flag in my apartment window properly because if i put it outside it would be stole. now i amm facing eviction because i refuse to remove it.

    1. Dear John Wayne—I am very sorry to learn that this is happening to you. I am providing you with a hyperlink to the Flag Code, which runs to about 20 pages when printed out. If you have a hard copy in your hand to show and/or give to the managers/owners of the apartment complex, it may help persuade them. This link is to the official federal website. The portion known as the Flag Code is called Title 4, Chapter 1, and has 10 sections. For your need, the relevant portion is found in Section 5, which you may want to highlight or underline on the hard copy.

      Link to the Flag Code: http://uscode.house.gov/download/pls/04C1.txt

      Directly below, I have printed out the relevant portion from the Flag Code that addresses your particular problem. The thing to remember is this: you absolutely have the right to fly an American flag on your rental property, but the property management also has the right (within limits) to set guidelines for displaying the flag. While displaying the flag in a window is a traditional and historical method of showing the flag, some apartment complexes dislike this because it distracts from the overall uniformity of the complex (in that they want all the windows to look alike).

      Because the apartment complex cannot (or will not) provide a safe environment that protects your flag from theft, then your only alternative is to display the flag in a window. Seeing and reading the “FREEDOM TO DISPLAY THE AMERICAN FLAG Act of 2005” in print is generally enough to convince most apartment complexes to leave the flag alone, but you may still have a fight on your hands.

      If seeing the law in print does not work, perhaps you can contact a local legal aid society. Also, a letter to the editor of your local newspaper, or the consumer advocate at a television station could help you. And your local city council member may be able to help you, too. Section 5 is long, but please read it carefully because it’s the law that protects your right to fly the flag.

      -CITE-
      4 USC Sec. 5 01/03/2012 (112-90)

      -EXPCITE-
      TITLE 4 – FLAG AND SEAL, SEAT OF GOVERNMENT, AND THE STATES
      CHAPTER 1 – THE FLAG

      -HEAD-
      Sec. 5. Display and use of flag by civilians; codification of rules
      and customs; definition

      -STATUTE-
      The following codification of existing rules and customs
      pertaining to the display and use of the flag of the United States
      of America is established for the use of such civilians or civilian
      groups or organizations as may not be required to conform with
      regulations promulgated by one or more executive departments of the
      Government of the United States. The flag of the United States for
      the purpose of this chapter shall be defined according to sections
      1 and 2 of this title and Executive Order 10834 issued pursuant
      thereto.

      -SOURCE-
      (Added Pub. L. 105-225, Sec. 2(a), Aug. 12, 1998, 112 Stat. 1494.)

      -MISC1-

      HISTORICAL AND REVISION NOTES
      ——————————————————————–
      Revised Source (U.S. Code) Source (Statutes at Large)
      Section
      ——————————————————————–
      5 36:173. June 22, 1942, ch. 435, Sec.
      1, 56 Stat. 377; Dec. 22,
      1942, ch. 806, Sec. 1, 56
      Stat. 1074; July 7, 1976,
      Pub. L. 94-344, (1), 90
      Stat. 810.
      ——————————————————————–

      -REFTEXT-
      REFERENCES IN TEXT
      Executive Order 10834, referred to in text, is set out as a note
      under section 1 of this title.

      -MISC2-
      FREEDOM TO DISPLAY THE AMERICAN FLAG
      Pub. L. 109-243, July 24, 2006, 120 Stat. 572, provided that:

      “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.”

      -End-

      I hope this helps you.
      Best wishes,
      Deborah Hendrick

  6. Deborah: We love reading all of the comments and your expert advise. My husband and I have a situation that involved HOA. Several weeks ago, my husband purchased a flagpole and placed it in common area near our unit, (We live in a condo). Few days later, we received a call from the management company, stating that the president of the association have received several complaints from neighbors in our complex and asked that we remove the American flag and pole. In compliance to the CCR’s, we’ve submitted to the HOA a “Request for Architectural Change” along with signatures from the neighbors in our complex, who were very disturbed of being accused of such complaint.
    My husband fought for this country along with many veterans, who have sacrifice their lives for the freeedom we have. We display the American Flag with due respect for all veterans who have served our country. The American Flag should and must be displayed at its full glory, with solar lighting for night.
    Until the board makes a decision in May, we will continue displaying the flagpole and the American Flag.

    1. Thank you for writing, and for your kind words; I try very hard to get it right for my readers.

      You didn’t ask a question, and you certainly did not ask for my opinion, but I encourage you to reread the entire document (word for word) of the Freedom to Display the American Flag Act of 2005.

      A delicate tension exists between the rights of the homeowner, and the regulations (and rights) of the HOA. This legislation absolutely gives you the freedom and the right to display a flag on your own property, but the commons area is controlled by the HOA. Let me suggest that you fly a flag on your porch or patio using a diagonal pole, or by hanging it vertically with the hoist side up—fully within the confines of your owned space (not off a balcony, for example). This law applies to the National flag only, and not a state flag, the POW/MIA flag, a college flag, or any other flag.

      In the meantime, your request for an architectural change can go forward, and you can continue to lobby for a freestanding pole in the commons area. But you need understand that you most likely will be turned down, and here is why: Flags are noisy. At night, the sound of a flag snapping in the wind (and the chain or rope knocking against the pole) can be especially loud because sound travels farther at night (cooler temps) than it does in the day. And sound travels father in damp air than dry air.

      Regarding lighting the flag: Many municipalities, and housing subdivisions—condo complexes—have night-time lighting restrictions, so night-sky watchers can see the stars more easily. You could perhaps compromise with the HOA on flying the flag during daylight hours only, so the noise and lighting problem is eliminated.

      I appreciate your desire to fly the flag 24/7, but consider that most federal installations do not fly the flag at night. It’s hard to imagine a military base without the morning call to Colors. Post offices, federal court houses, military hospitals, national parks—some one puts the flag up in the morning and take it down before dark. There is no less honor in flying the flag during the daylight only.

      On the practical side, a flag flown 24/7 will wear out three times faster than one flown only during the day. As a bit of insider information, the government calculates that most federal installations will need four flags a year, flying them during the day only. Depending on where you live, four flags a year may not be enough.

      Thank you for writing, and best wishes. Please me know how your request works out with the HOA.
      Deborah Hendrick
      deborah@flagsbay.com

      http://uscode.house.gov/view.xhtml?req=Freedom+to+Display+the+American+Flag+Act+of+2005&f=treesort&fq=true&num=0&hl=true&edition=prelim&granuleId=USC-prelim-title4-section5

  7. Hello, Deborah. You likely may not recall, but I posted several comments in August 2014 under the “Freedom to Fly the American Flag Act — Again” article. Our discussion covered the following:

    Our neighborhood HOA (not condo) does not mention any restriction on how to fly the American flag (or any flag) but the covenants enacted in 2006 have a “catchall” statement saying that installation of any structure requires board approval.

    I did not consider that a flagpole was a “structure.” So I was surprised after putting up a flagpole to get an email from the board president saying I had to take it down because “flagpoles are not allowed in “our neighborhood” — using that term to avoid using the real subdivision name.

    In our exchange of emails, the board president said at least 4 times that the board had decided no flagpoles. She said there had been a heated debate, and that a homeowner (she gave a name) was very annoyed when his request to erect a flagpole in his yard was denied.

    Here’s the thing: there is absolutely no evidence that the board ever banned flagpoles. That is, no meeting minutes, no evidence of a vote, and no inclusion in the covenants, even though the covenants revision took place shortly after the supposed “debates, and denial of the request.” The homeowner in question also told me he had never put in a request to erect a flagpole.

    The board president kept insisting that I remove the flagpole and then put in a request to install one under the covenant statement that says “structures have to be approved by the board.” I told her at a board meeting that it was not logical to say on the one hand that flagpoles had already been banned — and then tell me to go ahead and make application for one.

    Nevertheless, I agreed to make the application (although I did not take down the flag). Of course, it was denied. However, prior to the vote, I received a very nasty email from one board member telling me “fairness has gone out the window.” This board member had apparently been told something about me — i don’t know what– but I was shocked by her statement.

    I am rebutting the board decision using the rationale that the board president kept telling me inaccurate information about things such as the supposed board ban (I said there is no evidence to support this), and that there had been no request from anyone else, as she claimed.

    I have said in my rebuttal that I do not consider the board decision to be valid based on all the non-factual information she was telling me, and the board member’s statement about getting no fair treatment.

    I live in Tennessee.

    thanks for any updated advice,
    Delia

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