BEFORE YOU PROUDLY FLY YOUR FLAG…DOES YOUR ASSOCIATION HAVE ANY RESTRICTIONS

DISPLAY OF AMERICAN FLAG and MILITARY FLAG BY OWNERS

An issue that comes up every now and again in associations is the display of flags by owners. Some association declarations contain complete prohibitions on the display of any flags by owners, while other declarations may be wholly silent on the issue of flags. Fortunately for associations, there is statutory guidance regarding the display of some of the most displayed types of flags, namely the American flag and military flags. The display of other types of flags is not addressed by this article and will likely depend upon the specific terms of a particular association’s declaration.

For condominium associations, the Illinois Condominium Property Act (765 ILCS 605/18.6(a) and referred to as “Condo Act”) provides, and for associations subject to the Illinois Common Interest Community Association Act (765 ILCS 160/1-70(a) and referred to as “CICAA”) that act provides, that regardless of what other language may be within an association’s declaration, bylaws or rules, the association board “may not prohibit the display of the American flag or a military flag, or both, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located.” However, while a board may not prohibit the display of the American flag or a military flag by an owner, it may “adopt reasonable rules and regulations, consistent with Sections 4 through 10 of Chapter 1 of Title 4 of the United States Code, regarding the placement and manner of display of the American flag” and “may adopt reasonable rules and regulations regarding the placement and manner of display of a military flag.” Thus, owners within associations governed by either of these statutes are given the right to display an American flag and military flag, but the board may adopt reasonable rules and regulations regarding how such flags are displayed and placed.

Similarly, for any homeowner, property owner or townhome association that is incorporated as an Illinois Not-For-Profit Corporation, the Illinois Not-For-Profit Corporation Act (805 ILCS 105/103.30(a) and referred to as “NFP Act”) contains language permitting owners in such associations, regardless of what language may be contained in the applicable declaration, bylaws, or rules of the association, to display the American flag and military flag on the owner’s property. The manner and placement in which such flags may be displayed by owners can be regulated by the Board through reasonable rules and regulations.

In addition to granting owners within associations the right to display the American flag and military flag, the aforementioned statutes also grant owners the right to install flagpoles for the display of the American flag and a military flag. Both the Condo Act (765 ILCS 605/18.6(a)) and the CICAA (765 ILCS 160/1-70(a)) provide that an association board “may not prohibit the installation of a flagpole for the display of the American flag or a military flag, or both, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located, but a board may adopt reasonable rules and regulations regarding the location and size of flagpoles.” Likewise, the NFP Act (805 ILCS 105/103.30(a)) states that a property owner, townhome, or homeowner association that is incorporated as an Illinois Not-For-Profit Corporation may not prohibit the installation of a flagpole by an owner for the purpose of displaying the American flag and a military flag, but the association may adopt reasonable rules and regulations regarding the size and location of such flagpoles. Therefore, each of these statutes grant owners the rights to install flagpoles for the purpose of displaying the American flag and a military flag, but an association may regulate the size and location of such flag poles.

With respect to what flags are covered by the aforementioned statutes, the “American flag” is the flag of the United States of America. As for what constitutes a “military flag”, this means “a flag of any branch of the United States armed forces or the Illinois National Guard” according to the Condo Act (765 ILCS 605/18.6(b)), the CICAA (765 ILCS 160/1-70(b)), and the NFP Act (805 ILCS 105/103.30(b)).

Going into more detail as to what constitutes a “flag”, each of the aforementioned statutes provides that for purposes of this right granted to owners, a flag includes any American flag or military flag “made of fabric, cloth, or paper displayed from a staff or flagpole or in a window, but…does not include a depiction or emblem of [the American flag or a military flag] made of lights, paint, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component.” (765 ILCS 605/18.6(b), 765 ILCS 160/1-70(b), and 805 ILCS 105/103.30(b)). So, in short, the right is granted to owners to display actual flags, but not necessarily a decorative depiction of an American flag or military flag painted onto a building or otherwise created out of materials not typically thought of as a “flag”.

In summary, owners within associations are reserved the right by statute to display the American flag and a military flag, and to install flagpoles for the display of such flags. However, association boards may adopt reasonable rules and regulations regarding the display and placement of these flags, and the size and location of flagpoles. With respect to any rules and regulations adopted regarding the display of the American flag, these should be consistent with the United States Code provisions regarding the display of the American flag. The United States Code contains detailed provisions regarding the display of the American flag which are not included in this article for the sake of brevity. An association considering adopting restrictions on the display of the American flag and military flags would be prudent to consult with its attorney regarding what types of restrictions might be considered reasonable as well as what restrictions would be consistent with the United States Code. If your association is considering adopting restrictions on the display of the American flag and military flags, or already has such restrictions in place and would like them reviewed, please feel free to contact our office and one of our attorneys would be happy to assist you.