Flags and flagpoles in HOA communities: federal and state law

Many Americans live in communities run by a homeowners’ association (HOA), a condominium association or a housing cooperative, whose rules often cover what can be put up on a house or in a yard. Flags are an exception: a federal law protects the display of the US flag, and many states have laws of their own that protect more flags and, in several cases, the flagpole too. This guide describes the federal law and four state laws as examples; other states have rules of their own.

The federal law

The Freedom to Display the American Flag Act of 2005 (Public Law 109-243), signed on July 24, 2006, is short. Its core, section 3, 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 a member of the association from displaying the flag of the United States on residential property within the association” where the member has a separate ownership interest or a right to exclusive possession or use.

Section 4 sets two limits. The act does not permit a display that is inconsistent with the Flag Code or other rules for the proper display of the flag, and it keeps reasonable restrictions on the time, place or manner of display that are necessary to protect a substantial interest of the association.

The act protects the US flag only, and does not mention flagpoles. According to the Congressional Research Service, it applies to display in accordance with the federal Flag Code on property where the member has a separate ownership interest.

State laws: four examples

Texas

Under Texas Property Code § 202.012, a property owners’ association may not prohibit or restrict the display of the US flag, the Texas flag or a flag of the armed forces. It may adopt reasonable rules that require the flags to be displayed according to 4 U.S.C. §§ 5–10 and Chapter 3100 of the Government Code, that the flagpole be made of permanent, long-lasting materials with a finish harmonious with the house, and that flags and poles be kept in good condition. It can regulate the size of the flag, the lights used on it and noise from an external halyard, but it cannot prevent at least one flagpole per property that is not more than 20 feet high in the front yard, or one attached to the house. Flags on common areas can be prohibited.

Florida

Under Florida Statutes § 720.304(2), a homeowner may display up to two portable, removable flags of not more than 4 ½ by 6 feet from a list that includes the US and Florida flags, flags of the armed forces, the POW-MIA flag and first responder flags. Regardless of the association’s rules, the homeowner may erect one freestanding flagpole no more than 20 feet high, as long as it does not obstruct sightlines at intersections and is not in an easement, and fly one US flag and one other listed flag of equal or smaller size from it. The flagpole remains subject to building codes, zoning setbacks, noise and lighting ordinances and the setback criteria in the governing documents.

Arizona

Under A.R.S. § 33-1808, an association may not prohibit the outdoor front yard or backyard display of a list of flags, including the US flag displayed consistently with the federal Flag Code, the POW/MIA flag, the Arizona flag, Arizona Indian nations flags, the Gadsden flag, first responder flags and blue star and gold star service flags. The association may adopt reasonable rules on placement: it may regulate the location and size of flagpoles, limit a member to two wall-mounted holders and two flags at once, and limit the height of the flagpole to the rooftop of the home, but it may not prohibit a flagpole in the front yard or backyard.

California

Under California Civil Code § 4705, no governing document may limit or prohibit the display of the US flag by a member in their separate interest or exclusive-use common area, except as the protection of public health or safety requires. The law covers a flag of fabric, cloth or paper displayed from a staff or pole or in a window, but not depictions of the flag in lights, paint, roofing or landscaping. In a dispute, the prevailing party is awarded reasonable attorney’s fees and costs.

Flagpoles and the city

Even where an HOA cannot stop a flagpole, the city or county still can. Florida’s law says so outright, and Texas allows associations to require that flagpoles comply with zoning ordinances, easements and setbacks. Permits and local height limits are covered in the guides to installing a flagpole and flagpole heights, and lighting rules in the guide to flag lighting.