American Flags and Condominiums

Our condominium bylaws prohibit the display of flags without express written approval of the association.  One member flies an American flag from his porch night and day, claiming federal law allows him to do so.  Is there such a law?

Not only is there a federal law, there is a provision of the Michigan Condominium Act which sanctions display of american flags.

The Freedom to Display the American Flag Act of 2005, 4 USC §5, provides in pertinent part 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 with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

Under this federal law, a co-owner may display his flag on limited common elements to which he has exclusive possession (e.g., a porch or patio or deck not shared with another co-owner) or anywhere within his unit.  

This federal law specifically provides that the right to display is subject to "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.

A flag that is displayed from a deck such that it hangs onto a general common element sidewalk and blocks the sidewalk would be subject to the associations substantial interest in the free use of the sidewalk and the association could require the flag to be hung in such a fashion that it did not block pedestrian traffic.

The Michigan Condominium Act provides, in MCLA §559.156a, that "A developer or association of co-owners shall not prohibit a co-owner from displaying a single United States flag of a size not greater than 3 feet by 5 feet anywhere on the exterior of the co-owner's condominium unit.  A developer or association of co-owners shall not enforce a prohibition in existence before the effective date of this section on or after that effective date.”

This provision is more problematic, because of the widely varying definition of “unit.”  Under the Michigan Condominium Act,  MCLA §559.104, “condominium unit" means that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed, regardless of whether it is intended for residential, office, industrial, business, recreational, use as a time-share unit, or any other type of use.

In a traditional condominium project built with multiple units under a single roof, “unit” means the air space inside the four walls, ceiling, and floor:  the exterior of the building in which the unit resides is defined as general common elements.  Does the co-owner have the right to display a 3 x 5 flag on the exterior wall of the building?

The short answer is that a court has not yet interpreted this provision of the Michigan Condominium Act.  My advice to associations is that, if the co-owner’s flag is 3 x 5 feet or smaller, and is appropriately attached to the general common elements in a way that does not cause damage or obstruct use of the common elements by others, do not try to make the co-owner take it down.

© Steve Sowell 2018