By Deborah Goonan, Independent American Communities
If Sergeant Chris Link wants to display the American flag in his HOA-governed Texas community, he’ll have to put it in his back yard. That’s the suggestion offered by Falls of Fox Creek HOA manager, Tosha Purifoy, as reported by KCEN Channel 6.
HOA rules in the Killeen community limit flag displays to just 4 days per year: Memorial Day, Labor Day, Veterans Day and Flag Day.
The rest of the year, the flag cannot be proudly displayed in the front yard or on the porch. That’s ironic, because Falls at Fox Creek is just a few miles from Fort Hood military base.
According to the KCEN report, Link rents his home in the gated community. And the HOA President says that the owner of the home wants Link to remove the flag.
No doubt, that’s to avoid trouble with the HOA.
Associa Hill Country manages the community. A management representative tells KCEN that HOA governing documents don’t allow for free standing flag poles. And while restrictive covenants do allow a flag pole attached to the house, installation of the pole must first be approved by the Association.
In this case, the owner of the home that Link rents did not receive HOA approval to put up a flag pole attached to his house. So…no flag display for Link, unless he puts in the back yard.
The Sergeant says he’s prepared to fight the HOA on the issue of displaying his American flag, especially since federal law gives him the right to do so.
Link’s neighbors are just as outraged by the HOA’s restrictions. In solidarity, several neighbors have put up American flags in front of their own homes.
The problem with the Freedom to Fly the American Flag Act
Most federal and state laws pertaining to HOA-governed property start with the assumption that a private homeowners association has the freedom to restrict just about anything they want.
That’s the root of the problem in Falls at Fox Creek.
The way the American Flag Act is written, the HOA has greater rights than its homeowners and residents.
Yes, federal law creates some narrow restrictions for homeowners, condominium, and cooperative associations to comply with Fair Housing Acts.
But just about any other HOA covenant, restriction, or rule — no matter how ridiculous or petty — is assumed to be valid and enforceable. And, in most cases, the HOA can impose fines for a resident’s failure to comply.
If the homeowner or resident disagrees, the only choices are to launch a legal battle — with a long shot of winning — or pack up and move out.
The so-called “contractual” agreement
The HOA industry, including trade group Community Associations Institute (CAI), lobbies consistently for strong protection of HOA “contractual” rights contained in governing documents.
The problem: almost all governing documents for mandatory-membership housing associations are one-sided. These legal “contracts” are written by and for the benefit of real estate developers and the private HOA governing entities. Housing consumers — be they owners or tenants — play no active role in writing Covenants, Conditions, Restrictions, Bylaws, or rules.
But most of the time, the courts will uphold the HOA’s right to enforce any official rules authorized by the governing documents.
Limitations of The Freedom to Fly the American Flag Act
The Flag Act assumes the HOA has broad freedom to restrict displays of anything on personal property, as well as common property. Then it makes a narrow exception for the Association’s rights to limit displays of the American flag.
And, of course, that exception is further limited by the following conditions (emphasis added):
SEC. 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.”
Source: Freedom to display the American flag act of 20005
Sgt. Link argues that limiting display of the American flag to four days per year is not reasonable. But what if the HOA does not agree, and insists on imposing monetary fines on the tenant?
Will this become yet another legal battle with an HOA? Will the owner of the property be held liable for his tenant’s noncompliance? Will the HOA threaten to put a lien on the landlord/owner’s home? Will the owner then move to evict Sgt. Link?
If the HOA digs in its heels on this issue, any of these things is possible.
As you can see, the absurdity of Falls at Fox Creek HOA flag rules opens a huge can of worms.
And federal law, as written, does not prevent an HOA from making up ridiculous “time, place, and manner” restrictions, and calling them “reasonable.” ♦
Sgt. Chris Link who lives in the Falls of Fox Creek community in Killeen said the feud started Wednesday when he received an email that he needed to remove a flag that was hanging on a pole in his yard.
Author: Lea Wilson, KCEN-TV
Published: 2:10 PM CDT May 17, 2019
Updated: 10:31 PM CDT May 17, 2019