"There is no provision in the community's rules expressly forbidding flagpoles, Barfoot's daughter said. But she said the board ruled against her father's fixture and ordered it removed in July, deciding that free-standing flag poles are not aesthetically appropriate."
If there was no provision in the rules forbidding flagpoles, then the association cannot deny his flag pole under Federal & Virginia law.
from an attorney`s newsletter found at: http://www.reesbroome.com/associations/files/newsletters/October_2007.pdf
In mid-July 2006, Congress adopted the Freedom to Display the American Flag Act. (Public Law 109-243)
The statutes states in relevant part:
“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 . . .
Nothing in this Act shall be considered to permit any display or use that is inconsistent with . . . (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.”
This legislation means that community associations may not enact rules and regulations
that outright bar owners from displaying the American flag on their property, but may
lawfully enact rules regarding the time, place and manner of display.
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The 2007 amendments to the flag display provisions of the Virginia Property Owners
Association Act and the Virginia Condominium Act generally follow the federal law.
Section 55-513.1 of the Property Owners Association Act and Section 55-79.75.2 of the Condominium
Act state in relevant part:
“Unless specifically prohibited by the association's rules and regulations or architectural guidelines
[condominium instruments] . . . the association shall not prohibit any lot owner from displaying the flag
of the United States. . .
The association may restrict the display of such flag in the common areas [common elements] and may
establish reasonable restrictions as to the time, size, place, duration, and manner of placement or display.
. .
In any action brought by the association . . . the owner shall be entitled to assert as an affirmative
defense that the required disclosure of any limitations pertaining to the display of flags or any
flagpole or similar structure necessary to display such flags was not contained in the disclosure packet [or
public offering statement] . . . .”
When the state provisions are read in conjunction with the federal statute, again,
associations may not outright prohibit the display of the American flag, but can adopt
reasonable rules and regulations concerning the time and manner of display.
Under Virginia law, if the resale disclosure packet or public offering statement (in the case
of newly developed condominiums) do not contain the associations’ rules on flag display,
the owner has a right to assert such defense in the event an enforcement action is brought
against the owner for the illegal display of the flag. Accordingly, managers should specifically
be mindful of the Association’s flag rules and make sure they are enclosed in the Association’s
resale disclosure packet. If the flag display rules are contained in design or architectural
guidelines, the resale disclosure packet must contain a full copy of those guidelines with the
flag provisions. The Association will not be able to enforce a covenants violation regarding
the manner of display of an owner’s flag if such rules were not contained in the owner’s packet at
the time of settlement, unless the owner had actual knowledge that the contents of the
disclosure packet were in error.