Real Estate: Vet Faces Foreclosure For Flying American Flag

Should the American flag be a real estate issue?On no, it’s happened again. A homeowners association is irate because someone is flying an American flag.

According to various news reports 73-year-old Air Force vet Larry Murphree is allegedly facing foreclosure because of the manner in which he displays the American flag at his Florida condo. Murphree has a small flag in a flower pot rather than on a pole as approved by his homeowners association. He’s now being fined $100 a day for the infraction. A lawyer for the HOA says Murphree might face foreclosure if the fine, which can be no more than $1,000, is not paid.

It doesn’t matter that Murphree is 73 years old or served six years in the Air Force. Neither fact has anything to do with the debate. The same problem could arise if a 22-year-old college student took the identical action. The real question is why flying an American flag is such a big deal with condos and co-ops.

Given that flags are symbolic of countries, and given that our flag is symbolic of the US, it follows that flags are seen as more than mere pieces of fabric.

In 1968, during the Vietnam War era, the government passed the Flag Desecration Act. It provided that “whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.”

In 1989 the Supreme Court ruled in Johnson v. Texas that protestors burning flags to symbolize their opposition to government policy was a form of expression and expression is plainly protected by the First Amendment.

Real Estate, Rights and the American Flag

Murphree is not burning a flag. He simply wishes to display it in front of his condo so what’s the big deal?

Condos, however, are a form of real estate which differs from traditional home ownership. With a traditional,  fee-simple, property the owner has a full bundle of rights. With a condo or co-op unit owners agree to abide by the rules established by their homeowners association or co-op board, meaning owners give up some of their rights as a condition of living in a condo or co-op community.

The homeowners association is there generally to improve the owner’s quality of life and property values. As an example, I have a rural property governed by a homeowners association. It meets once-a-year, charges a $50 annual fee, and restricts its activities to mowing common areas. The annual meeting typically lasts about 12 minutes and would be faster if not for the laughter and bantering.

Other homeowner associations are larger, more formal and — in the eyes of some — vastly more intrusive. They want to control such things as the minimum size of a home and the paint colors which can be used. Some HOAs want to enforce flag regulations, enough so that the Congress actually passed a 2006 law, Pub.L. 109-243, to address this vital subject.

Real Estate Flag Laws

The 2006 legislation lays out two standards, standards which conflict.

First, it tells us 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 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.”

Then it adds that HOAs may make “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.”

The result is that condo and co-op owners have the right to display flags — but only in an approved manner. On the other hand, since “display” is a form of expression it’s hard to see how part two of the 2006 law would ever pass muster in the Supreme Court.

Naturally, some HOAs have stepped into this breach with a variety of rules and regulations and the result is that we wind up with disputes such as that faced by Mr. Murphree and his HOA.

Debates about HOA flag rules are a waste of everyone’s time and money. After all, is there no better use of HOA dollars then to pursue flag displayers?

Mr. Murphree, with his little flag in the flower pot outside his door, is not bothering anyone. If anything his display is rather modest and entirely within the bounds of good taste. He’s doing no more — or less — than expressing pride in his country.

So have a nice July 4th, enjoy the hot dogs and fireworks, and let’s hope Mr. Murphree and his HOA can work something out because if this matter goes to court the betting here is that no judge, jury or Supreme Court is going to allow an HOA to foreclose on a 73-year-old war vet — or anyone else — for respectfully displaying the American flag.

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