OK, fess up... which of y'all would have wanted the guy to take his flag down?

[pigletgirl]

Nope not me! What a incredible honor he has that is way more than the flag. I'm glad the HOA dropped the request.

What I don't like is the fact that they didn't like it because of looks. That is total BS....

 

[FireDancer]

Are there any situations that you would fight your HOA over? I understand why some would want to live in an area that helps keep property values up (and in some cases junky yards away), but are there any situations that might cause you to fight against a HOA? Without knowing the whole story, this seems to me like such a situation where this man is fighting for what he truly believes in (of course it might be that he's just a kranky old dude who just didn't feel like trying to go through the right channels) It really is hard to say without knowing the whole story though.

There are limitations to what a HOA can restrict. The FCC has ruled that they can not prohibit antennas or satellite dishes. A HOA can not restrict accessibility ramps or anything that goes against the ADA. All it takes is someone to take a stand and fight the HOA in court.

I could see a court ruling that the restriction of flying a flag (any, not just the American) can be a violation of the First Amendment. It would just take someone fighting it long enough to get a court ruling. In certain states a HOA can't levy leans on a property so I would imagine anyone ignoring a HOA rule they don't agree with would leave the HOA with little actual recourse, other than ostracizing the offender.

 

[Anjelica]

The Goofster -

Most HOA's are established before the first house in a subdivision is even sold. It's legally filed with the County, etc. and is on file before a homeowner purchases the house. It's generally on the title and a copy of the by-laws is generally given at the time of closing - HOWEVER since the by-laws are on file with the County the prospective homeowner can view the by-laws and decide whether they are fine with purchasing a house in a subdivision with xx rules (and we've had many homeowners do that).

For our subdivision, if the HOA trustees want to change any of the by-laws on file we have to have at least 2/3 of all homeowners written permission to change, add or delete a by-law. Then, if by some small chance you get 2/3 of all homeowners to agree to something you then file the change, add or deletion of the by-law with the county.

 

[ginna74]

I so WOULD NOT mind.... WOULD NOT botther me in the least....

 

[bicker]

Let's suppose that you move into an area with a HOA, and after reading all the guidelines you feel comfortable making the decision to live there. But, after a year or so, the HOA decides that they no longer feel like pets are a good idea, and so you would have to get rid of your pets. Would those of you who have pets (a beloved dog or cat who many feel like are part of the family) fight this decision?

"Fighting the decision" is actually a legitimate part of the process. You go to the board, make your plea, trying to get them to reverse their decision. They consider your points, assuming that they hadn't considered both sides of the issue when they passed the new rule in the first place, and then render a decision. Just like any legislature. Some associations even write into their rules provisions for "public hearings" or other notifications, similar to what you see in municipal government. It's all built on our nation's long-standing tradition of democracy.

And indeed government have banned certain types of pets before, so even in context the parallel is there.

In the end, though, you can fight a decision, make your feelings known, try to marshal compelling opposition, but the way civilized society works is that until you're successful, the rules, as they are, prevail. Imagine if someone decided that we should all drive on the left, and just started doing so, even though they couldn't get other people to agree with them. That is a more extreme example, but the same principle applies.

Would you simply just move away (like some have mentioned, even though moving is such a humongous bother - not to mention expensive procedure)? Would you get rid of your pet?

My wife and I would probably move away.

Again, fighting the HOA isn't the issue. It's violating the rules you implicitly agreed to comply with.

 

[Jenvenza]

I am not one who would have a flagpole in her yard, but it doesnt bother me one bit if someone else does. It's a flag. It wasnt like this man had piles of trash in his front yard. I am glad they decided to let him keep it.

 

[mill4023]

Herein lies the problem. If he is allowed to fly his flag, why can't the neighbor fly their confederate flag or Nazi flag? Personally, I LOVE having a HOA. I live in an area where people freely fly their confederate flags (which I know some people are fine with but I am not). I don't want to pull into my subdivision everyday and stare at someone's 21 foot tall confederate flag. It is bad enough that I have to see small ones on their front porch. Allowing this veteran freedom to fly his 21 foot patriotic flag would almost guarantee someone in my area would fly something that is offensive to many. Honestly, when I lived up north, I would have had a totally different opinion on this and wouldn't have thought twice about it. Since moving down south, my opinion has changed.

Allowing one does not allow the others.

Freedom to Display the American Flag Act of 2005 - 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 an association member from displaying the U.S. flag 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.

 

[bicker]

I am not one who would have a flagpole in her yard, but it doesnt bother me one bit if someone else does. It's a flag. It wasnt like this man had piles of trash in his front yard. I am glad they decided to let him keep it.

I'd be concerned about someone putting a controversial flag up on shared property. It could become a target for vandalism or worse.

Allowing one does not allow the others.

Freedom to Display the American Flag Act of 2005 - 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 an association member from displaying the U.S. flag 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.

This is also the provision in OTARD, the law that allows you to have a satellite dish. It means that you can put your flagpole (or dish) on your own balcony or semi-private terrace or deck, but not on common land.

Thanks for posting the detail.

 

[mill4023]

I'd be concerned about someone putting a controversial flag up on shared property. It could become a target for vandalism or worse.

This is also the provision in OTARD, the law that allows you to have a satellite dish. It means that you can put your flagpole (or dish) on your own balcony or semi-private terrace or deck, but not on common land.

Thanks for posting the detail.

His front yard is not common land.

 

[daisax]

This is also the provision in OTARD, the law that allows you to have a satellite dish. It means that you can put your flagpole (or dish) on your own balcony or semi-private terrace or deck, but not on common land.

I'd love to learn more about this law. Our condo bylaws prohibit satellite dishes -- they void the warranties on our siding and roofs, which are common property. So it would be interesting if there' s a federal law that basically prohibits us from having a warrantee on roofs and siding.

As far as this particular gentleman -- to me it's cut and dried contract law. He has freedom of speech, too, but if he signed a contract with a clause prohibiting him from speaking about certain issues, I would expect him to abide by it.

 

[sbell111]

... I could see a court ruling that the restriction of flying a flag (any, not just the American) can be a violation of the First Amendment. It would just take someone fighting it long enough to get a court ruling. In certain states a HOA can't levy leans on a property so I would imagine anyone ignoring a HOA rule they don't agree with would leave the HOA with little actual recourse, other than ostracizing the offender.

The Bill of Rights restricts the actions of government, not the actions of private citizens. Therefore, this restriction against the flagpole cannot be deemed unconstitutional.

Allowing one does not allow the others.

Freedom to Display the American Flag Act of 2005 - 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 an association member from displaying the U.S. flag 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.

You might note that the HOA did not ban flags. They apparently banned flagpoles or flagpoles of a certain size. This type of ban does not violate the act. The homeowner can still display the flag.

 

[bicker]

His front yard is not common land.

Who's front yard? The Medal of Honor recipient? I didn't read anything that had that level of detail, i.e., what is common versus what is limited-common. (My comment was also more general in nature, not specific to this specific situation, which earlier I said should be been handled as an exception, regardless.)

Again, in general: In a condominium (not an HOA), the front yard is almost always common land, unless it is enclosed. In an HOA (not a condominium), the front yard is almost always private land (not common or limited-common -- a concept that doesn't even exist with most HOAs).

 

[legalsea]

Allowing one does not allow the others.

Freedom to Display the American Flag Act of 2005 - 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 an association member from displaying the U.S. flag 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.

One, I do not see where the First Amendment is involves, since a HOA is not a governmental agency.

As for the Freedom to Display the American Flag Act of 2005, let us have the whole act (section 1 is the ‘short title’, Section 2 is definitions):

Section 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES.
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.

Section 4. LIMITATIONS.

Nothing in this Act shall be considered to permit any display or use that is inconsistent with--

(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or

(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.

Emphasis added by me.

Hence, an HOA may still place reasonable restrictions on the manner of displaying the flag, which would probably include outsized flagpoles.

 

[bicker]

I'd love to learn more about this law. Our condo bylaws prohibit satellite dishes -- they void the warranties on our siding and roofs, which are common property.

OTARD explicitly allows limitations that respect the integrity of the common structure -- simply put, yes they can prohibit you from violating the siding. What you can do instead is put the dish in a concrete-filled flower-pot on your deck or terrace.

 

[Lisa loves Pooh]

The vast majority that people think would not pass legal muster actually would, and with flying colors.

One of the most common HOA rules that does not pass legal muster are rules that limit or prohibit satellite dishes. There is a federal law that essentially nullifies bans, and restricts limitations.

Evidently in some states that also includes the drying of clothes on lines--no matter how tacky some feel it is.

ETA: I gotta get going, so the quickest google was a wikipedia article, but here are the states the prohibit such bans:

http://en.wikipedia.org/wiki/Clothes_line

The controversy surrounding the use of clothes lines has prompted many governments to pass "right-to-dry" laws allowing their use.[1] According to Ian Urbina, a reporter for The New York Times, "the majority of the 60 million people who now live in the country’s roughly 300,000 private communities" are forbidden from using a clothes line.[13]

As of October 2009, the states of Florida, Colorado, Utah,[14][15][16] Hawaii, Maine and Vermont had passed laws forbidding bans on clothes lines. Similar bills were under consideration in Maryland, North Carolina, Oregon and Virginia. At least eight states restrict homeowners associations from forbidding the installation of solar-energy systems, and lawyers have debated whether or not those laws might apply to clothes lines. A British filmmaker, Steven Lake, planned to release a film in May 2010 titled Drying for Freedom about the clothes-line controversy in the United States.[13]

In Canada, the province of Ontario lifted bans on clothes lines in 2008

 

[Lisa loves Pooh]

OTARD explicitly allows limitations that respect the integrity of the common structure -- simply put, yes they can prohibit you from violating the siding. What you can do instead is put the dish in a concrete-filled flower-pot on your deck or terrace.

On the other recent HOA thread--someone had posted that although their HOA attempts to restrict how the dish can be installed, the HOA cannot interfere with the dish location and where it can best received the signal.

So for example--so while the solution you provide could work, it will not always work depending on the orientation of the condo owner in relation to the direction the dish needs to aim to caputer the signal.

I have seen dishes installed on deck railings though to avoid siding. Though most everything here is concrete block.

 

[daisax]

OTARD explicitly allows limitations that respect the integrity of the common structure -- simply put, yes they can prohibit you from violating the siding. What you can do instead is put the dish in a concrete-filled flower-pot on your deck or terrace.

Okay, that's good. Well, the concrete flower pots would suck, but there would be no reception at that level anyway, so we're safe.

 

[legalsea]

I will add that the Federal law passed about the right to fly the American flag would probably not withstand court scrutiny. It was a ‘feel good’ law that no one dared oppose.

However, under what possible jurisdictional basis does the Federal government have to make such a law?

The U.S. Congress justifies many laws that affect the several states by invoking the Fourteenth Amendment (the due process amendment) or the ‘interstate commerce’ clause of the Constitution (“to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). See Article 1, Sec. 8, clause 3.

I can see where the US Congress can stick their oar in about satellite dishes, since it involves the sale of services that cross state lines. However, flying a flag on your own property does not constitute interstate commerce or involve due process.

Anyway, now that the HOA in question has backed down about allowing a 21 foot tall flagpole to be erected to fly the American flag, then I have no doubt others in the neighborhood will start erecting such flagpoles, on the basis that said restriction has been effectively rescinded by the HOA. After all, if a WWII vet can do so, then why not a Vietnam vet? Desert Storm? Indeed, now it would be discrimination to not allow a non-veteran to raise such a flagpole.

 

[bicker]

On the other recent HOA thread--someone had posted that although their HOA attempts to restrict how the dish can be installed, the HOA cannot interfere with the dish location and where it can best received the signal.

The bolded statement, taking by itself, is simply not the case. OTARD is explicit. The HOA can limit the dish to limited-common or private space (i.e., prohibit it from common space), and can prohibit breaching the siding or foundation. Essentially, they can make it very hard... and if you happen to live on the wrong side of a building, it could legitimately be made impossible, and be in accordance with the law.

What the HOA cannot do is say that you can only put the dish on limited-common or private space in the back of the building. OTARD says you can put the dish in any limited-common space. As long as there is limited-common or private space on the side of the building best for satellite reception, then you can put the dish there (assuming all the reasonable restrictions are also satisfied that way).

 

[shortbun]

Those people seriously need a reality check and something meaningful in their lives.
I can not fathom people being so petty or materialistic that this would become an issue anywhere in this country. They should be ashamed of themselves.