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  1. #1
    Join Date
    Feb 2009
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    28

    Default Can a HOA Bar Homeowners from Flying a Flag

    My question involves civil rights in the State of:
    My HOA has denied me the right to put up a flag on my property. I have a permit from the city (which seems completely overkill and beyond) but have yet to have the work done as it is gonna be costly. The HOA keeps saying they are not denying me the right to fly the us flag, just a flag pole. Now they are putting a 90 day moratorium on all flagpole applications as a proposed flagpole rule is currently pending. The HOA has their own flagpole at one of the entrances to the community and plenty of people have all sorts of flags and banners. What can they possibly do to me if I ignore them? I've quoted to them the Federal flag act and civil code 4705 but they don't care.
    What are my options?
    Sorry if this belongs in a different thread.
    Regards,
    Don

  2. #2
    Join Date
    Oct 2014
    Posts
    7,091

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    The federal law to which you refer is not the Flag Act. As a historical note, there were three Flag Acts, the latest of which is the Flag Act of 1818, which set out the current rule that the United States flag shall have 13 stripes which alternate red and white and shall have a blue field with one star for each state of the Union. The act you mean is the Freedom to Display the American Flag Act of 2005. Under that Act the HOA may not completely prohibit you from displaying the flag of the United States. However it may impose a "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." So if the pole you want is inconsistent with the design scheme of the HOA it may prohibit the pole as long as you have other options available to display the flag.

    You did not mention the state you are in. But I assume you are in California as you refer to Civil Code section 4705. That law does not have the reasonable restriction exception in it that federal law does, so perhaps you can prevail over the HOA under that section.

  3. #3
    Join Date
    Mar 2013
    Posts
    16,670

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Quote Quoting Riker0007
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    The HOA keeps saying they are not denying me the right to fly the us flag, just a flag pole.
    Your option is to fly the flag and be prepared to go to court over it.

    According to the CA statute you don't need the HOA approval because the statute prohibits the HOA from denying you the right to fly it.

    Why not start with inexpensive bracket that hangs the flag on the side of your house.

    See what the HOA Nazis do about that.

  4. #4
    Join Date
    Feb 2009
    Posts
    28

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Thanks for the info. Yes, I'm in California. Myself and my boy, really liked the idea of a pole and a solar light on top so it could be lit at night. The HOA is trying to make it about the pole, not the flag, so they say. The cost of doing this to "code" could cost $500 - $700 in just material let alone dig a 2 foot by 2 foot by 5 feet deep hole to fill with concrete and rebar.

    What would be the "substantial" harm? The pole is easily removed or put up. No worse than a kids basketball hoop.
    What kind of legal action can they take if I tell the HOA to sit and spin?
    Putting this pole up is now more of a matter of principle.

  5. #5
    Join Date
    Mar 2013
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    16,670

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Quote Quoting Riker0007
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    dig a 2 foot by 2 foot by 5 feet deep hole to fill with concrete and rebar.
    OK, then maybe it is about the pole as there may be an objection to any vertical projection with a concrete base (ham radio tower, TV antenna, a permanently installed basketball hoop, etc).

    Quote Quoting Riker0007
    View Post

    What would be the "substantial" harm? The pole is easily removed or put up.
    But you'll still have the concrete base.

    Quote Quoting Riker0007
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    What kind of legal action can they take if I tell the HOA to sit and spin?
    Fine you, put a lien on your home, sue you in small claims court for the fines. HOA Nazis can make a persons life a living hell.

    Quote Quoting Riker0007
    View Post
    Putting this pole up is now more of a matter of principle.
    Then get an inexpensive bracket and hang it on the wall of your house. Then you'll find out if it's about the flag or the pole.

  6. #6
    Join Date
    Jul 2018
    Posts
    1,068

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Quote Quoting Riker0007
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    My HOA has denied me the right to put up a flag on my property. I have a permit from the city (which seems completely overkill and beyond) but have yet to have the work done as it is gonna be costly.
    What do these two sentences have to do with each other? Why would putting up a flag require "costly" work?


    Quote Quoting Riker0007
    View Post
    The HOA keeps saying they are not denying me the right to fly the us flag, just a flag pole.
    Ok, so your statement that your "HOA . . . denied [you] the right to put up a flag on [your] property" was false, right? Not being allowed to display a flag and not being allowed to put up a flagpole are obviously very different things.


    Quote Quoting Riker0007
    View Post
    What can they possibly do to me if I ignore them?
    An HOA's recourse when a homeowner violates the rules is to assess a fine, and unpaid fines eventually turn into liens against the homeowner's property.


    Quote Quoting Riker0007
    View Post
    I've quoted to them the Federal flag act and civil code 4705 but they don't care.
    The "Flag Code" (4 U.S.C. ch. 1) does not give you the right to erect a flagpole if doing so violates your HOA rules. If you want to fight in court over whether California Civil Code section 4705(a) would be construed to prohibit a rule against flagpoles, be my guest. Seeing as how "a proposed flagpole rule is currently pending," I would think your interests would be better served by waiting to see what happens with that.

  7. #7
    Join Date
    Oct 2016
    Posts
    2,665

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    If the HOA does anything with their new rule that limits something for a safety reason sue'em. The law is really amazingly clear other than the safety issue. Plus if you win it awards legal fees.

  8. #8
    Join Date
    Feb 2009
    Posts
    28

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    How else does one fly a flag unless on some sort of a pole?
    4705 states (a) Except as required for the protection of the public health or safety, no governing document shall limit or prohibit, or be construed to limit or prohibit, the display of the flag of the United States by a member on or in the member’s separate interest or within the member’s exclusive use common area.
    Does the HOA have the jurisdiction on public health and safety? "no governing document shall limit or prohibit, or be construed to limit or prohibit" - how are they not violating this?

    The cost is the concrete and materials and digging of the hole.

    Thanks to all for the answers and comments.

    Quote Quoting PayrolGuy
    View Post
    If the HOA does anything with their new rule that limits something for a safety reason sue'em. The law is really amazingly clear other than the safety issue. Plus if you win it awards legal fees.
    Isn't the city permit dept in charge of safety; they are not qualified to discuss this. Where can I sue? Small claims or must I get an attorney?

  9. #9
    Join Date
    Oct 2016
    Posts
    2,665

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Quote Quoting Riker0007
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    Isn't the city permit dept in charge of safety; they are not qualified to discuss this. Where can I sue? Small claims or must I get an attorney?
    The city isn't the only entity that could claim safety issues. So could the HOA.

    I doubt (but am not sure) that a case such as this could be handled in small claims court. You don't have to have a lawyer but the HOA will, with your money.

  10. #10
    Join Date
    Jul 2018
    Posts
    1,068

    Default Re: HOA Violation Civil Code 4705 and Federal Flag Act

    Quote Quoting Riker0007
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    How else does one fly a flag unless on some sort of a pole?
    I don't care to list all of the obvious ways this could be accomplished, but let's recognize that the sort of "pole" that folks often screw into the side of their houses and a metal pole embedded into the ground with concrete (which appears to be what you're talking about) are very different things.


    Quote Quoting Riker0007
    View Post
    4705 states (a) Except as required for the protection of the public health or safety, no governing document shall limit or prohibit, or be construed to limit or prohibit, the display of the flag of the United States by a member on or in the member’s separate interest or within the member’s exclusive use common area.
    Does the HOA have the jurisdiction on public health and safety? "no governing document shall limit or prohibit, or be construed to limit or prohibit" - how are they not violating this?
    You certainly have an argument that there's a violation. On the other hand, how far does it go? At some point, someone's effort to "display" the flag could become unreasonable. That said, Civil Code section 4705 appears to have become operative just over five years ago, and (based on a quick Google Scholar search) it does not appear that any California appellate court (or the California Supreme Court) has meaningfully interpreted section 4705. An unpublished case called Boswell v. The Retreat Community Association mentioned the same issue you have raised as one of almost 20 issues that the plaintiffs had with their HOA, but there was no discussion of the statute, and the case was primarily about the application of California's anti-SLAPP law. You free to pour a bunch of money into a lawsuit if you are so inclined and can find a lawyer willing to take the case.

    Quote Quoting PayrolGuy
    View Post
    I doubt (but am not sure) that a case such as this could be handled in small claims court. You don't have to have a lawyer but the HOA will, with your money.
    I can't think of any reason why the OP's "case" couldn't be handled in small claims court, and attorneys are not permitted to represent clients in small claims court in California.

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