Read the commenting rules carefully because they will be enforced!
My words to them would have been: Take me to court. The right to fly the flag is in the Constitution.
HA! I have had "discussions".lol...with 3 HOA in the US for this very same issue, and yes, two were with veterans and one was a Gold Star Mother. Was a positive outcome in every case - and yes I DID post on TB at the time.. Sounds like another project for me..
Also, if I remember correctly, President Bush passed HR 42 (I think that's the right number) directly related to flag flying. Can you pass on my contact info to the GOE you got the email from please, and have them contact me? I can help with this.
It's obvious to me that the condo assn has to be from Berkeley. And as a veteran I would have simply told the to shove it up their ass and sue me. They would never collect a dime. I would have a 40' flag pole in the middle of my yard.
Sorry all, this isn't about the flag, it's about following condo rules. What if this woman put up "Vote for Barack Obama" signs instead of flags and the association told her to take them down and she refused. My guess is that all of you would see this situation different.
Put your patriotism in your pocket for just 5 minutes and try to realize that condo associations have rules that need to be followed...even if you don't like it. I like in a condo and our association has many rules - but I follow them. We don't get to pick and choose the rules we are going to follow and the rules we are not going to follow.
If the condo association lets her break this rule, what stops someone else from breaking another rule? Who gets to determine what rules are followed and what rules are not followed?
Good morning "angry".lol. Glad you brought this up. I may be wrong, but it is my understanding that FEDERAL laws and statutes over-ride any HOA bylaw, or even state law..I had a long discussion last year with an American lawyer representing an HOA who was telling me how a veteran had no rights to fly his flag as he chose, because it violated the HOA "rules". Long story short here, this veteran is STILL flying his flag - proudly!
Therefore, any citizens advocacy group can make any bylaw they like. Push come to shove the FEDERAL law of the land takes precedence.
I stand ready to be "corrected"...lol
CARRY ON!
In short, the HOA is breaking the law. And they are setting themselves up for a countersuit, especially if their "complaint" actually makes it to a court room. See the PL below.
Public Law 109-243
109th Congress
An Act.
To ensure that the right of an individual to display the flag of the
United States on residential property not be abridged.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Freedom to Display the American Flag Act of 2005''.
SEC. 2. DEFINITIONS.
For purposes of this Act--
(1) the term ``flag of the United States'' has the meaning given the term ``flag, standard, colors, or ensign'' under section 3 of title 4, United States Code;
(2) the terms ``condominium association'' and ``cooperative association'' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603);
3) the term ``residential real estate management association'' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 52
; and;
(4) the term ``member''--
(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association;
(B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and
(C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.
SEC. 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.
[[Page 120 STAT. 573]]
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.
Approved July 24, 2006.
LEGISLATIVE HISTORY--H.R. 42
Thanks, Carpenter. I have to say, I enjoyed educating the American lawyer about HR 42.
he went on for 15 minutes "educating" me, then was surprised when I asked him if he was familiar with HR 42...lol...
Shocking when even foreigners know your laws..
brat-
Yes, federal law does take precedence for the most part. But, only in a federal court or when enforced by a federal agency. Local and state entities have no jurisdiction or authority to enforce federal laws.
Carpenter-
Maybe I
’m reading that law wrong, but it says an association cannot implement a policy against displaying a flag on residential property “to which such member has a separate ownership interest or a right to exclusive possession or use”.
In this case, MSgt Denise James setup flags in a common area. Therefore, from reading that above public law, she does not have exclusive possession or use of that area. Therefore, I think the condo association is within its bounds to enforce its rules. I could be interpreting wrong, but if I am, that would mean anyone could display a flag in common area at a condo association and I hardly doubt that was the intent of that law.
Angry,
In my lay opinion, an argument can be made when considering the full measure of Section 3, as it apparently has been before.
But speaking specifically to intent, the display of the flags is within the space reasonably regarded as MSgt James' living area -- unless HOA meetings and other group activities are regularly conducted in the flower bed under her porch.
Therfore, protection of her display of the American Flag would certaily be within the intent of the law.
And keep in mind that the law only applies to the American Flag -- not a flag of any color or persuasion.
Well, of the 3 cases I know personally, none of them chose to proceed with legal remedies as they perceived them to be within the state laws.
I did have all the nuances explained to me by one of the Board's in Colorado. A very reasonable man,(and a veteran as well.lol) who understood very well how even if the law was interpreted against the flag flyer in court, the court of public opinion was a thorny path to travel, and not one they were willing to go.
And yes, carpenter, it is my understanding that HR 42 only applies to the American flag, not private industry or interest groups (as was the case in another state where I was able to point out to the lawyer that the "offending" American flag was nowhere near as intrusive on common property as the complex's building contractor's flag.
Carpenter-
I live in a condo. The bylaws for MY association state that anything outside of my condo is considered common area and I do not own it. Now, her association could be different. But for the most part, condo owners don't own anything outside. I also have a flower garden outside my front porch...I don't own the garden and I don't even own the front porch! I'm not allowed to hang Xmas lights on my porch without asking permission.
I'll bet that she technically does not own that flower garden and by her association bylaws, it's considered common area.
Several residents have their flags flying in accordance with the condos rules. She was never prohibited from flying the flag.
The area where she put her flags is common area according to the association.
There are too many alleged adults in the US who are lying in wait to find a moment where they feel they have been wronged in a way that makes them feel justified in their actions perhaps for the first time in their lives and take up a cause greater than themselves. Even if its a phony one.
This is such a case. This woman was never prevented from flying the flag. But I'm sure she feels better knowing she has a bunch of people batting for her based on her "white" lie.
The fact that she would use this as an opportunity to suggest that the condo association would somehow want to dishonor her service to the country is disgusting.
While I agree that the condo should not have the right to make her take down the small flags, HR 42 also states that anyone is allowed to fly the 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." The common area (aka all the grass, landscaping, and anything beyond the patio boundaries) is considered common area, not hers to use.
If they surveyed the 188 units in the complex, I imagine that nobody would have a problem with her flags, but they may have a problem with her rule violation.
I live in the McKenzie Place condos. We received a brand spankin' new rule book in May of 2008, with a letter asking that anyone with questions please contact the management company. After reading it, I promptly took down my decorations in the hallway by my front door, as well as my bird feeder in the "common lawn." I love to tie my dog out on the lawn and let him lay outside, but it was now forbidden, so obviously I've stopped that practice.
Little does Denise know, that when others are trying to buy condos in the complex, the management company must now disclose that they're involved in a legal matter to the lender. What does that mean? It means that some people will not be able to get a mortgage due to unsettled matters. They may have to go elsewhere, costing them more money in application fees and may just say "forget it, we don't want the hassle." So it may wind up costing more than the simple $250, it will cost some homeowners their ability to sell.
I would ask that she please settle now so that our values don't decline and we lose out on purchases because of her ignorance of the laws.
Ray,
I also live in McKenzie Place. Yes, the management co. will have to disclose Denise's legal matter...they will also have to disclose that the Board of Directors did not pay the siding co. and have liens on 2 of the buildings as a result of their actions. This matter goes beyond flags...it goes straight to a condo board gone insane with power. The board members have whatever they want in their "common" areas. The rest of us try to jump thru their hoops (ie alteration forms) and are refused the rights they flaunt in our faces. So, don't blame Denise. Place the blame where it rightfully belongs...with the Board of Directors who live by one set of rules and try to enforce another set on the rest of us who live there. Oh, and by the way..that brand spankin' new rule book....totally against McKenzie Place by laws and the Pa. condo law.
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