Federal Law. On July 24, 2006, HR42, the Freedom to Display the American Flag Act, was signed into law. It prohibits restrictions on displaying the U.S. flag on a member's unit, lot or exclusive use common area. Under the Act, community associations:
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.
Federal law allows community associations to establish reasonable time, place, or manner restrictions necessary to protect a substantial interest of the association.
California Law. California's Civil Code § 4705 adopted in 2002, allows owners to display the United States flag on their separate property or exclusive use common area, regardless of any association restrictions to the contrary, except as required for the protection of public health or safety.
Manner of Display. Subject to restrictions protecting the public health and safety, California law guarantees the U.S. flag may be displayed:
- in a window of a separate interest
- from a staff or pole on owner's balconies, patios, decks, private yards, or other locations on a separate interest or exclusive use common area
Regulating Materials. California law only applies to U.S. flags made of fabric, cloth or paper. Associations may prohibit U.S. flags or depictions of the flag made from lights, paint, roofing, siding, paving materials, flora, or balloons, or any other similar material. (Civ. Code § 4705(b); Civ. Code § 4710(b).)
Flag Poles. Associations can limit the size, color and construction of poles. However, the restrictions must be reasonable.
Worn and Tattered Flags. Associations can ask an owner to replace a flag that is faded or tattered. However, to enforce compliance, associations should adopt flag rules.
Raising and Lowering the Flag. The flag should be raised briskly and lowered slowly and ceremoniously. When the flag is lowered, no part of it should touch the ground or any other object; it should be received by waiting hands and arms. To store the flag it should be folded neatly and ceremoniously.
How to Fold the Flag. Flags, when not in use, should be folded into a triangle shape. Fold the flag in half width-wise twice. Fold up a triangle, starting at the striped end ... and repeat ... until only the end of the union is exposed. Then fold down the square into a triangle and tuck inside the folds. A properly proportioned flag will fold 13 times on the triangles, representing the 13 Original Colonies. When finally complete the triangular folded flag is emblematical of the tri-corner hat worn by the Patriots of the American Revolution. When folded no red or white stripe is to be evident leaving only the honor field of blue and stars.
Advertising . Associations can prohibit the display of the US flag for advertising purposes. (Civ. Code § 4710.)
Foreign Flags. Because of the broad language in Civil Code § 4710, associations cannot prohibit the display of flags of other countries. Associations can, however, limit the number of flags, whether American or otherwise, to one.
Sample Rules. Following are some issues associations may wish to consider when adopting rules:
- A U.S. flag consists of 13 equal horizontal stripes of red (top and bottom) alternating with white; there is a blue rectangle in the upper hoist-side corner bearing 50 small, white, five-pointed stars arranged in nine offset horizontal rows of six stars (top and bottom) alternating with rows of five stars.
- Only one flag, whether American or otherwise, may be flown per household.
- Flags [in condominium projects] may be displayed on balconies in the following manner...
- Flag poles [in planned developments] are limited to the following height, materials and locations...
- Flags may only be flown between sunrise and sunset [If houses are close to each other, this will eliminate flapping noise that might disturb neighbors.]
- Flags may only be constructed of the following materials: nylon, polyester, cotton or similar materials. Flags constructed of lights, paint, balloons or other materials are prohibited.
- Flags are limited to the following dimensions... [establish acceptable sizes such as 2'x3', 4'x6', etc.]
- Flags may not be flown upside down.
- Flags may only be flown at half staff for Federal, State, or Association recognized memorials authorizing flags to be flown at half staff. These generally include by order of the (i) President upon the death of a principal figure of the United States Government, (ii) the Governor of California upon the death of a past or present official of California, or (iii) the Board of Directors upon the death of past or present member of the Board.
- Flags must be cleaned and mended as needed.
- Flags may not be displayed in such a manner as to permit them to be easily torn, soiled, or damaged in any way.
- Flag should not be displayed during inclement weather unless an all-weather flag is used.
Recommendation: Boards should consult legal counsel whenever issues arise related to the display of flags.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.
