765 ILCS 605/18.6 & 765 ILCS 160/1-70: A guide to displaying an American or Military flag in an Illinois Community Association

765 ILCS 605/18.6 & 765 ILCS 160/1-70:  A guide to displaying an American or Military flag in an Illinois Community Association

Can your HOA’s restrictive covenants or condominium documents ban flags? The ability to ban flags in community associations has become controversial in recent years.  In many states, there have been news articles, and even lawsuits, involving owners who have encountered issues displaying political flags, thin-blue line flags, or flags from other countries.  Generally, a community association has broad authority to regulate the exterior appearance of a condominium unit or a home in a common interest community, including the display of flags.  However, community association board members should be aware that a homeowners association does not have an unfettered right to regulate the American flag or a military flag, as will be discussed below.

The Freedom to Display the American Flag Act of 2005

The Freedom to Display the American Flag Act of 2005, 4 USC §5, and its accompanying executive order, provide as follows:

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.

Accordingly, a condominium or homeowners association should not completely ban an owner from flying the American flag on property that they own.  However, the Freedom to Display the American Flag Act permits community associations to enact reasonable regulations regarding the display of the American flag.  Specifically, the Freedom to Display the American Flag Act allows reasonable restrictions “…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.”  Accordingly, it is common for restrictive covenants to permit the display of an American flag, but limit its size, the location that it may be displayed, or times that the flag can be displayed.

Finally, it is worth noting that at least one federal court has held that an owner does not have a private right of action against a community association for violating the Freedom to Display the American Flag Act.  Specifically, a Florida federal court held as follows:

Upon review, the Court determines that the Freedom to Display the American Flag Act of 2005 does not provide any enforcement mechanism, or explicitly create a private right of action for individuals such as Murphree to bring a lawsuit against a condominium association. Indeed nothing in the language, structure or legislative history of the Act creates a private right of action against such entities, even by implication.

Murphree v. Tides Condo. At Sweetwater by Del Webb Master Homeowners’ Ass’n, Inc., 3:13-CV-713-J-34MCR, 2014 WL 1293863, at *15 (M.D. Fla. Mar. 31, 2014).  However, as will be discussed below, Illinois state law also has certain requirements related to the display of the American flag, which could potentially be enforced in state court.

765 ILCS 605/18.6 & 765 ILCS 160/1-70:  Flags in Illinois Community Associations

765 ILCS 605/18.6 of the Illinois Condominium Property Act and 765 ILCS 160/1-70 of the Illinois Common Interest Community Association Act also contain the following restrictions on displaying a flag:

Notwithstanding any provision in the declaration, bylaws, community instruments, rules, regulations, or agreements or other instruments of a common interest community association or a board’s construction of any of those instruments, a 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. A board 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 a board may adopt reasonable rules and regulations regarding the placement and manner of display of a military flag. A 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.

The Condominium Act and Community Interest Community Association Act define an American flag and a military flag as follows:

“American flag” means the flag of the United States (as defined in Section 1 of Chapter 1 of Title 4 of the United States Code and the Executive Orders entered in connection with that Section) made of fabric, cloth, or paper displayed from a staff or flagpole or in a window, but “American flag” does not include a depiction or emblem of the American flag made of lights, paint, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component.

“Military flag” means a flag of any branch of the United States armed forces or the Illinois National Guard and the Honor and Remember Flag made of fabric, cloth, or paper displayed from a staff or flagpole or in a window, but “military flag” does not include a depiction or emblem of a military flag made of lights, paint, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component.

Accordingly, as indicated above, while Illinois law permits a community association to enact reasonable rules related to the display of an American or military flag, a community association could not outright ban these types of flags.  While a community association may be able to ban most other types of flags, Illinois condominiums should also be aware of the requirements contained in 765 ILCS 605/18.4(h), which states that the board of managers has the following authority:

(h) To adopt and amend rules and regulations covering the details of the operation and use of the property, after a meeting of the unit owners called for the specific purpose of discussing the proposed rules and regulations. Notice of the meeting shall contain the full text of the proposed rules and regulations, and the meeting shall conform to the requirements of Section 18(b) of this Act, except that no quorum is required at the meeting of the unit owners unless the declaration, bylaws or other condominium instrument expressly provides to the contrary. However, no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.

In interpreting the above section of the Illinois Condominium Property Act, an Illinois appellate court stated as follows:

We hold that section 18.4(h) “forbids a board from ‘impair[ing] any rights guaranteed by the First Amendment,’ not from violating the Amendment itself.” Goldberg v. 400 East Ohio Condominium Ass’n, 12 F.Supp.2d 820, 824 (N.D. Ill. 1998) (quoting 765 ILCS 605/18.4(h) (West 1998)). Under section 18.4(h), condominium boards must not adopt or enforce any rules that prohibit the free exercise of religion, abridge the freedom of speech, or abridge the right to peaceably assemble. See U.S. Const., amend. I.

Boucher v. 111 E. Chestnut Condo. Ass’n, Inc., 2018 IL App (1st) 162233, ¶ 18, 117 N.E.3d 1123, 1130, 427 Ill. Dec. 186, 193, 2018 WL 3025412.

While there is no case law in Illinois interpreting the above section of the Condominium Property Act in the context of flags, there may be certain situations where a condominium board may need to consider whether a rule or regulation interferes with rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution.  However, other owners making an argument that flag restrictions have violated their rights have not fared well around the country.  By way of example, a federal court in Maryland dismissed a religious discrimination claim when a condominium association’s restrictions prevented a co-owner from displaying a Jhandee in a certain area of his balcony in violation of the condominium bylaws. Boodram v Maryland Farms Condo, No. CIV. JFM-92-549, 1992 WL 813667, at *1 (D Md, October 2, 1992).  While the Maryland federal court ruled that there was no right to a reasonable accommodation for religious purposes under the federal Fair Housing Act, that case may have had a different result in Illinois.  Similarly, an owner in Ohio attempted to argue that he had a First Amendment right to fly a thin-blue line flag, which the court rejected. Swantack v New Albany Park Condo Ass’n Bd of Directors, Docket No. 2:22cv2130, 2022 WL 17600518 (S.D. Ohio Dec. 13, 2022).

Conclusion

Illinois condominiums and homeowners associations certainly have some authority to regulate the exterior appearance of a unit or home, including flags.  However, as indicated above, Illinois community associations cannot completely ban the American flag or a military flag.  Given that this is a potentially tricky area of the law, especially for Illinois condominium associations that may also have to consider First Amendment implicants, it is important to contact a community association attorney prior to amending the governing documents, enacting flag rules, or taking action to enforce bylaw violations related to flags.

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Mr. Hirzel is licensed to practice law in state and federal courts in Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations in Michigan and Illinois. He may be reached at 312-552-7669 or kevin@hirzellaw.com.