By Fred Kreitzman

Minnesota and Federal Flag Legislation

The governing documents of a significant number of common interest communities (“CICs”) in Minnesota contain provisions allowing the CICs’ homeowners associations to prohibit homeowners from flying flags in their units or exclusive use areas. However, Minnesota and federal legislation establish certain rights of homeowners in CICs to display the Minnesota and United States flags (“Flags”) in those portions of the CICs in which they reside or otherwise have exclusive use. The relevant Minnesota legislation, which became effective on August 1, 2005, is Minnesota Statutes Section 500.215 (“Minnesota Legislation”). The relevant federal legislation, which became effective on July 24, 2006, and which is known as the “Freedom to Display the American Flag Act of 2005” (“Flag Act”), is in the historical and statutory notes portion of Section 5 of Title 4 of the United States Code.

A. Minnesota Legislation

With some exceptions, the Minnesota Legislation provides a homeowner in a CIC with the right to display the Flags in that owner’s exclusive use areas. Those exclusive use areas include, for example, the homeowner’s unit and certain limited common elements in the CIC that may be allocated for the exclusive use by that homeowner such as a balcony or a patio. The Minnesota Legislation provides that “homeowners association documents” that otherwise limit the rights of homeowner to display the Flags are, generally, void and unenforceable. The definition of “homeowners association documents” in the Minnesota Legislation includes the declaration, the articles of incorporation, the bylaws, and the rules and regulations of CICs (regardless of whether the CICs are governed by, and subject to, Minnesota Statutes Chapter 515B known as the Minnesota Common Interest Ownership Act).

1. Exceptions to the Rights to Display the Flags
   

   The Minnesota Legislation establishes certain exceptions to, or limitations on, a homeowner’s right to display the Flags. Those exceptions and limitations can be set out in the homeowners associations documents, and are as follows:
   
   (a) Limitations may be imposed that are narrowly tailored to protect the health or safety of the residents of the CIC.
   
   (b) Limitations may be imposed on the size of the Flags, to a size customarily used on residential property.
   
   (c) Limitations may be imposed on the installation and display of the Flags to a portion of the CIC to which the person displaying the Flags has exclusive use.
   
   (d) Limitations may be imposed on the illumination of the Flags.
   
   (e) Requirements may be imposed which require that (i) the Flags be displayed in a legal manner under Minnesota law; (ii) the Flags be in good condition and not altered or defaced; and (iii) the Flags not be affixed in a permanent manner to that portion of the property to be maintained by others (which could include the homeowners association) or in a way that causes more than inconsequential damage to another’s property.

2. Applicability of the Minnesota Legislation

   The Minnesota Legislation provides that the rights afforded by it to homeowners in CICs exists regardless of whether the homeowners association documents that would otherwise limit the display of the Flags were adopted before, on, or after the effective date (August 1, 2005) of the Minnesota Legislation. Accordingly, if a CIC declaration that would otherwise limit the display of the Flags is recorded (in the county in which the CIC is located) before the effective date of the Minnesota Legislation, the Minnesota Legislation will override that limitation. Nevertheless, the exceptions in the Minnesota Legislation to the rights of homeowners to display the Flags will also apply, regardless of the date of the recording of the CIC declaration.

3. Damages and the Recovery of Attorney Fees

   The Minnesota Legislation provides that a person who displays the Flags, and who causes damage to property to be maintained by others or causes damage to others’ property as a result of the installation or display of the Flags, is liable for the cost to repair the damage. The Minnesota Legislation also provides that, if a homeowner is denied the rights provided by the Minnesota Legislation to display the Flags, that homeowner is entitled to recover, from the party who denied the rights, reasonable attorney fees and expenses if the homeowner prevails in enforcing the rights. On the other hand, if the Flags are installed or displayed in violation of restrictions or limitations that are allowed by the Minnesota Legislation, the party enforcing the restrictions or limitations is entitled to recover, from the party displaying the Flags, reasonable attorney fees and expenses if the enforcing party prevails in enforcing the restrictions or limitations.

B. The Flag Act

The Flag Act provides that a homeowners association may not adopt or enforce any “policy” that would restrict or prevent a homeowner from displaying the United States flag on residential property within an association with respect to which the homeowner has (i) a separate ownership interest or (ii) a right to exclusive possession or use.

The term “policy,” as used in the Flag Act, is not defined in the Flag Act. However, a reasonable interpretation of that term would include any governing documents of the particular homeowners association (such as the declaration, the bylaws, the articles of incorporation, or the rules and regulations). Given a reasonable interpretation of the term “policy,” the Flag Act provides to a homeowner in a CIC virtually the same rights to fly the United States flag in a CIC that are granted to a homeowner under the Minnesota Legislation.

1. Limitations on the Rights of a Homeowner to Display the United States Flag
   

   The Flag Act establishes certain limitations on a homeowner’s rights to display the United States flag. Those limitations are as follows:
   
   (a) A homeowner does not have the right to display or use the United States flag in a way that is inconsistent with the federal laws governing the display or use of the United States flag or with any rule or custom pertaining to the proper display or use of the United States flag (as established by, or as set forth in, any relevant federal or state law).
   
   (b) A homeowner does not have the right to display or use the United States flag in a way that is inconsistent with any reasonable restriction established by the homeowners association which pertains to the time, place, or manner of displaying the United States flag; provided, that the restriction is necessary to protect a substantial interest of the homeowners association.
   

   “Substantial interest” of a homeowners association, as that term is used in subpart (b), above, is not defined in the Flag Act. A substantial interest of a homeowners association could, arguably, include the increased exterior maintenance that the homeowners association may be required to undertake as a result of the installation of the apparatus in which the United States flag is mounted. Another substantial interest of the homeowners association could, arguably, be the manner in which the United States flag is illuminated, if the illumination causes undue disruption to a neighbor of the homeowner flying the United States flag. Since the terms “substantial interest” are not defined in the Flag Act, and given that there are no court decisions interpreting those terms, it is not possible to set forth with certainty the types of acceptable restrictions that a homeowners association may place on homeowners flying the United States flag. Nevertheless, any such restriction must be reasonable, must pertain to the time, place, or manner of displaying the United States flag, and must be necessary to protect a substantial interest of the homeowners association.

C. Practical Effect of the Minnesota Legislation and the Flag Act

If a homeowners association wishes to restrict or limit the display of the Flags in a CIC to a homeowner’s exclusive use area, the homeowners association should review its homeowners association documents and any relevant laws, such as the Minnesota Common Interest Ownership Act, to determine the homeowners association’s authority to impose those restrictions and limitations. Since provisions in homeowners association documents usually restrict homeowners from placing their personal property (which, generally, includes the Flags) on the exterior of the dwelling, or on the interior of the dwelling but in a location which allows them to be seen from the exterior, those provisions may possibly establish the allowed restrictions set forth in the Minnesota Legislation and the Flag Act.

If such provisions do not exist, then the homeowners association may consider establishing relevant rules and regulations (if the homeowners association has the authority to do so), or it can undertake an amendment to its governing documents to establish the provisions (the amendment(s) must be approved as required by the relevant governing document being amended).

Directors and officers of homeowners associations, and association property managers, are encouraged to contact one of the attorneys in our office who advise homeowners associations, with any questions regarding the Minnesota Legislation or the Flag Act.