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Balcony Flag

Started by GeorgerwilliamsW • 42 replies • 3663 views

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GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Maybe a more reasonable approach would be to specify how a flag must be securely attached.

Or how about a single community flag as a compromise.

A properly secured flag and staff has little chance of falling and creating a liability for the association.

Quite frankly, looking at the photo in the article, I do think the flag is out of place and inappropriate. However, it appears to be securely and adequately attached.

What do you think?


Condo rule changes could block owners from flying flag from balcony
All Deborah Ross wants to do is fly an American flag from her Fairwinds condominium in Annapolis. But a potential rule change by her association may restrict where she can put it.
9/17/2008 3:32:48 PM -

http://www.hometownannapolis.com/cgi-bin/read/2008/09_17-48/CAN
KirkW1 (Texas)
Posts: 1,665
Posted:
While I could definitely go for an approved method, I don't agree with a community flag. It is just not the same. Also, this seems somewhat familiar to a story where they were fussing about having put screws in the structural members.

Giving the Board the benefit of the doubt, I think they are going overboard in the liability fears. For that matter, I think it these fears are reaching epidemic levels where people assume there are more lawsuits then there really are because everyone talks about the liability so much. And it is threatening volunteerism.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
I wonder how this situation would be different were the flag hung as a banner on the railing, rather than from a staff?

I gotta agree with you Kirk regarding volunteerism and our litigious society.
BonnieE (Illinois)
Posts: 338
Posted:
George,

An interesting situation – this has some similarities as the owner’s right for a satellite dish and the HOA’s right to develop rules as to location and placement (attachment). What if she wanted a satellite dish and her condo’s associated limited common elements would only allow the dish to be attached to her deck in order to receive the signal? Would the dish be prohibited?

But, getting back to her flag – it appears that the flag can touch the deck – must flags be free flying? I agree her flag does appear to be out of place, especially given its size. I agree that specifying the type of attachment could be a compromise which would address the damage and liability issue.

I also wonder if part of the reason for the rule prohibiting anything to be attached to the railings could be aesthetics? Our rules addressing decks and patios make a reference to aesthetics. But, they do not prohibit anything from being attached to the deck railing nor do they prohibit anything sitting on the railing (such as a planter).

Did you read the reader comment about the article?

Here are some snippets:

“The actual association by-laws state that nothing is to be placed on the balconies unless permitted by the board of directors.”

If true, then chairs, potted plants must be approved? Or, perhaps there are rules that outline what is allowed.

“Exclusive use is within the footprint of the unit. This doesn't include a balcony railing, window, or exterior wall. Not only could there by liability issues, but also concerns about aesthetics as well as potential damage to railings and exterior walls that are not the property/responsibility of the residents, but of the association.”

Interesting - I wonder if this is based on state law. In IL, the exclusive use limited common elements include decks and patios (and windows). If true, then this answers my question about dish placement from above - and addresses the issue of attaching anything to the deck as it may cause damage, as the maintenance of the deck is the responsibility of the HOA.

Bonnie
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By BonnieE on 09/18/2008 5:55 AM
I also wonder if part of the reason for the rule prohibiting anything to be attached to the railings could be aesthetics? Our rules addressing decks and patios make a reference to aesthetics. But, they do not prohibit anything from being attached to the deck railing nor do they prohibit anything sitting on the railing (such as a planter).

Did you read the reader comment about the article?
My sense is that the issue is completely aesthetic, having nothing to do with liability or damage to structural elements or limited common elements. That is just a ruse. Flying a flag from a balcony seems out of place, not disrespectful to the flag, but inappropriate. (It also seems inappropriate-- even disrespectful--
to me to see Olympic athletes parading with the flag as a cape.)

The comment was not there when I read the article. Thanks for pointing it out.

Rather than making more out of the situation than it probably deserves, I wonder if the association could put the owner on notice that should any damage occur that required repairs, the owner would be held personally responsible for the cost.

Were I king of the condo, I would probably overlook this issue. Doing something may create a bigger stink than it solves. Sometimes you just have to learn to live with the weird behaviors of one's neighbors.
DonnaS (Tennessee)
Posts: 5,671
Posted:


Once again, associations adopt rules that are against Federal Laws and codes. Below is from the Federal Flag Act, revised in 2007

Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Florida has a Statutes that states the above so banning a balcony flag will not happen there. What association can do is to have limitations on location .
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By DonnaS on 09/18/2008 7:09 AM

Once again, associations adopt rules that are against Federal Laws and codes. Below is from the Federal Flag Act, revised in 2007

Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Florida has a Statutes that states the above so banning a balcony flag will not happen there. What association can do is to have limitations on location .

Donna,

The condo assn's rule is NOT against fed law! Note that it explicitly states: "residential property to which the member has a separate ownership interst." The balcony of a condo unit is not an exclusive use area. What this assn has done is exactly what you say than can do: ". . .have limitations on location."
MaryA1 (Arizona)
Posts: 7,043
Posted:
Bonnie,

You asked: "An interesting situation – this has some similarities as the owner’s right for a satellite dish and the HOA’s right to develop rules as to location and placement (attachment). What if she wanted a satellite dish and her condo’s associated limited common elements would only allow the dish to be attached to her deck in order to receive the signal? Would the dish be prohibited?"

The FCC ruling regarding satellite dish antennas only applys to the "exclusive use" area of a condo unit. This is the area owned by the member. The ruling does not apply to any areas of the condo owned by the assn, so the assn may prohibit attaching a satellite dish to those areas.

FCC ruling can be found at: www.fcc.gov/mb/facts/otard.html
MaryA1 (Arizona)
Posts: 7,043
Posted:
George & Kirk,

I agree we have become a litigious society and sometimes we do go overboard a bit. And, because we are a litigious society, a prudent board will be concerned with potential liability issues, which is why in many instances they adopt rules prohibiting anything from being placed on balcony railings. I see nothing wrong with their rule prohibiting flag poles from being mounted on the balcony railing. Fed. law only addresses a person's residential property "to which the member has a separate ownership interest", which does NOT include a balcony railing in a condo assn.
TamaraW (Ohio)
Posts: 193
Posted:
http://www.ushistory.org/betsy/flagcode.htm

Fly the flag! Respect the flag while doing so. It appears to me in this picture the flag is hung dis-respectfully due to the flag code. It is touching the plants next to it, and the balcony itself. She should find better placement for it and the BOD should take a chill.

GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By MaryA1 on 09/18/2008 8:02 AM
Fed. law only addresses a person's residential property "to which the member has a separate ownership interest", which does NOT include a balcony railing in a condo assn.
You quotation is not complete. You are only quoting part of the paragraph from the "Freedom to Display the American Flag Act of 2005:"
    Sec. 3: 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.http://www.govtrack.us/congress/billtext.xpd?bill=h109-42

    My understanding is that a balcony comes under the "exclusive possession or use" clause as a limited common element.
      Usually parking spaces, garages, balconies<\b>, roof decks, storage spaces, garden areas and the like can be designated as a limited common element.

      A limited common element is carved out of the common elements of the building which ordinarily could be used by all and designated for the exclusive use by one owner.
    http://www.thinkglink.com/

    Also:

      As you may be aware, a limited common element is defined in the Illinois Condominium Property Act ("Act") as a portion of the common elements designated in the Condominium’s Declaration as being reserved for the use of a certain unit or units to the exclusion of other units. This generally includes balconies, terraces, patios, parking spaces, shutters, awnings, windows boxes, door steps, porches, perimeter doors, windows and perimeter walls.
    http://www.ksnlaw.com/publications/pioneerpress/LimitedCommonElem.html
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Right on Tamara! Couldn't have said it better.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Ditto!!
BonnieE (Illinois)
Posts: 338
Posted:
True in Illinois – but what about where that HOA is located? Per the commenter on the article, the deck is not an exclusive use limited common element.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
You are correct. I do not know what the law is in Maryland regarding limited common areas and exclusive use. (My guess is--and it is only a guess--that it is similar to Illinois, and the comment is wrong. But I admit utter and complete ignorance.)

Perhaps the operational question is: is the railing a "limited common element along with the balcony." Don't know.

It would be great if the person who commented provided citations to help eddducate us ignroramuses.
TamaraW (Ohio)
Posts: 193
Posted:
Quote:
Posted By GeorgerwilliamsW on 09/18/2008 9:03 AM
You are correct. I do not know what the law is in Maryland regarding limited common areas and exclusive use. (My guess is--and it is only a guess--that it is similar to Illinois, and the comment is wrong. But I admit utter and complete ignorance.)

Perhaps the operational question is: is the railing a "limited common element along with the balcony." Don't know.

It would be great if the person who commented provided citations to help eddducate us ignroramuses.

George, you spelled ignoramuses wrong!

I could not imagine the balcony being common area. That would mean I could come party on her balcony and she would not have a say. At least here, that is what that would mean.

However, I think the homeowner will win this one. The BOD should contact their local Legions and sick them on her for dis-respecting the flag.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
I ain't got no 'bility to speel. An I cant reed well 'nuf to use a dictioneery.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By GeorgerwilliamsW on 09/18/2008 8:23 AM
Posted By MaryA1 on 09/18/2008 8:02 AM
Fed. law only addresses a person's residential property "to which the member has a separate ownership interest", which does NOT include a balcony railing in a condo assn.
You quotation is not complete. You are only quoting part of the paragraph from the "Freedom to Display the American Flag Act of 2005:"
    Sec. 3: 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.http://www.govtrack.us/congress/billtext.xpd?bill=h109-42

    My understanding is that a balcony comes under the "exclusive possession or use" clause as a limited common element.
      Usually parking spaces, garages, balconies<\b>, roof decks, storage spaces, garden areas and the like can be designated as a limited common element.

      A limited common element is carved out of the common elements of the building which ordinarily could be used by all and designated for the exclusive use by one owner.
    http://www.thinkglink.com/

    Also:

      As you may be aware, a limited common element is defined in the Illinois Condominium Property Act ("Act") as a portion of the common elements designated in the Condominium’s Declaration as being reserved for the use of a certain unit or units to the exclusion of other units. This generally includes balconies, terraces, patios, parking spaces, shutters, awnings, windows boxes, door steps, porches, perimeter doors, windows and perimeter walls.
    http://www.ksnlaw.com/publications/pioneerpress/LimitedCommonElem.html

George,

I quoted what was written in the CRS Report for Congress - CRS-15. However, "exclusive use" normally does not cover the balcony; but that should be defined in the condo docs. The act does not address "limited common elements", only "exclusive use". Perhaps the reason for this is because the law only applies to what the member actually owns, not partially, but wholly. Anything that the HOA owns does not apply to the law.
TamaraW (Ohio)
Posts: 193
Posted:
Quote:
Posted By GeorgerwilliamsW on 09/18/2008 9:22 AM
I ain't got no 'bility to speel. An I cant reed well 'nuf to use a dictioneery.

Maybe you should of gotten that eddducation thing you spoke of! LMBO

GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By TamaraW on 09/18/2008 9:25 AM
Posted By GeorgerwilliamsW on 09/18/2008 9:22 AM
I ain't got no 'bility to speel. An I cant reed well 'nuf to use a dictioneery.

Maybe you should of gotten that eddducation thing you spoke of! LMBO
Sadly, they don't teach us lawyers how to write in law school. That's why so many laws and deed restriction documents are so poorly written. It is so you have to hire a lawyer to interpret them for you.
TamaraW (Ohio)
Posts: 193
Posted:
Oh boy, now you are open to lawyer jokes............
DonnaS (Tennessee)
Posts: 5,671
Posted:

George,

Remember the bunch of bananas?
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By TamaraW on 09/18/2008 12:21 PM
Oh boy, now you are open to lawyer jokes............
Bring 'em on. I love them. And I have a boatload to share.

By the way although I do have a law degree and I am a member of the Indiana and DC bars, I have never been a practicing attorney. (You wouldn't want to engage me anyway). Instead, I took the academic and public policy
consulting route.
JohnO6 (Georgia)
Posts: 424
Posted:
Well George - you said bring 'em on .. .. ..

Little known fact that the Food & Drug Administration recently approved the use of lawyers in addition to the use of rats for pre-clinical (e.g. pre-human drug testing).

When reporters asked an FDA spokesperson about why such a rule was enacted, they respondeded:

There are 3 reasons we took such action:

1). Currently there are far greater numbers of lawyers than rats, so simply from a supply & demand issue the rule makes sense.
2). Apparently researchers become much less emotionally attached to the lawyers than the rats, so it seems somewhat compassionate towards the investigators,

but the most compelling reason of all is

3). There are just some things you can't get a rat to do!

Cheers
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Quote:
Posted By DonnaS on 09/18/2008 12:26 PM

George,

Remember the bunch of bananas?

Absolutely. I had not heard that one before. I loved it! How true. I even passed it along to my colleagues who got a kick out of it. (Yes lawyers do have a sense of humor about themselves.) I think it will become a classic.

DwightT (Idaho)
Posts: 664
Posted:
Actually, the bar association says that lawyer jokes better stop or they will sue.....

DonnaS (Tennessee)
Posts: 5,671
Posted:

Dwight,
Who they gonna sue? The whole world?
KirkW1 (Texas)
Posts: 1,665
Posted:
What few people seem to understand is that there are only two lawyer jokes out there. The rest of them are true. Sadly the lawsuit to stop them is being held up while they try to determine which two are true.
GlenL (Ohio)
Posts: 5,491
Posted:
Ohio covered the issue of where the flagpole can be placed in the law:

5311.191 Condominium declaration prohibiting placement of flag unenforceable.

(A) No declaration, bylaw, rule, regulation, or agreement of a condominium property or construction of any of these items by the board of managers of its unit owners association shall prohibit the placement of a flagpole that is to be used for the purpose of displaying, or shall prohibit the display of, the flag of the United States 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, if the flag is displayed in accordance with any of the following:

(1) The patriotic customs set forth in 4 U.S.C.A. 5-10, as amended, governing the display and use of the flag of the United States;

(2) The recommended flagpole standards set forth in “Our Flag,” published pursuant to S.C.R. 61 of the 105th Congress, 1st Session (1998);

(3) Any federal law, proclamation of the president of the United States or the governor, section of the Revised Code, or local ordinance or resolution.

(B) A declaration, bylaw, rule, regulation, or agreement or the construction of any of these items that violates division (A) of this section is against public policy and unenforceable in any court of this state to the extent it violates that division.

Effective Date: 04-07-2003

Studies show that 5 out of 4 people have problems with fractions
DonnaS (Tennessee)
Posts: 5,671
Posted:

Kirk,
You areally are a hoot!
MaryA1 (Arizona)
Posts: 7,043
Posted:
Glen,

AZ also addresses flag poles in the flag statute. In fact, it was because of my suggestion to the sponsor of the bill! If you take a look at all the controversial flag disputes in most instances the flagpole was the problem. Here is what AZ statute says:

"The assn rules may regulate the location and size of flagpole but shall not prohitit the installation of a flagpole."

I wasn't real pleased with this verbiage, but it was a compromise needed to pass the bill.
KirkW1 (Texas)
Posts: 1,665
Posted:
The real solution here would take an amendment to the US Constitution. It would read something like this:

Any person who desecrates the flag of the United States of America shall be forthwith stripped of their citizenship and all right and claim to live within. Congress shall have the power and duty to setup a program where said people after having lost citizenship shall be deported to a state willing to take them. If none shall be found they may be set adrift in international waters.

Further, anyone who is found to have tried to stop another from properly flying the flag shall be subject on the first offense of having citizenship removed. If they are stupid enough to continue this unpatriotic path they too shall be deported and/or set adrift in international waters.

The idea is to get rid of the bums. But since the Supreme Court has ruled that flag desecration is free speech, and there is no current mechanism to strip citizenship from natural borns, we need a constitutional amendment.

While I am bot really serious about setting them adrift in international waters, I don't have issue with stripping citizenship from people guilty of flag desecration. And I don't have an issue with people who hide behind "liability concerns" facing the same.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Yea Kirk, you're my kind of guy!
DonnaS (Tennessee)
Posts: 5,671
Posted:

This is the Florida Statute 720:304. Easy to understand as far as I can read it. SEE WHERE IT SAYS IN THE SECOND SENTENCE--"REGARDLESS OF ANY COVENANTS,RESTRICTIONS, BYLAW, RULES OR REQUIREMENTS OF THE ASSOC."

(2)(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.

(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner's real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

Was this state law enacted after the G. Andress lawsuit? Wasn't his flagpole was much higher than 20', right? But, I believe 20' is the standard recommended height in a community with standard size s/d lots.
GeorgerwilliamsW (Indiana)
Posts: 975
Posted:
Mary, In a quick Google search, I have been unable to find any recommended standard height for a residential flag pole. Would your cite your source for the information you posted, please.

Also, what is a standard size s/d lot??
DonnaS (Tennessee)
Posts: 5,671
Posted:

Mary,
Yes, Mr. George Andress brought this into the spotlight, so much that the then Gov, Jeb Bush, came and put his 2 cents worth in. The fines had gone into the tens of thousands and national media was all over this. The next year, the Statue was in place. Very costly for the HOA who should have worked this out with him--an ex Marine

Now we have Mr. Donald Trump with his humungous flag flying over Mar A Lago with the town of Palm Beach fighting it's size. His arguement is that it fits in with the scale of the property and he is right. The estate is many acreas and the building is on a grand scale. P.B has a flag size ordinance. Any away we go!!!
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

Always someone wanting to buck the system!
DonnaS (Tennessee)
Posts: 5,671
Posted:

Mary,
I saw the famous Donald on a T.V. interview about his problem with Palm Beach and the ordinance on the flag size. He has a very good arguement on the size of his flag. It is HUGE but when anyone nears the coast of S.E Florida by boat, they can see this beautiful flag from miles out. It truely is a landmarker.

But the basic battle is over who has the most money or clout in P.B. Don't forget, there is more money in that couple of miles of coastline, than in all of most States. But I do think the the Donald will prevail. All he has to do is to go before the counsil and appeal to them to allow his flag but history says that he will not.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

I'm sure The Donald's mindset is that would be beneath him! He doesn't strike me as a person who's used to asking for anything. Frankly, I think the size of the lot should be taken into consideration when determining the height of the flagpole. I seem to recall Andress was on acerage. The 20' rule comes into play because so many s/d lots are small and anything larger would certainly be out of place.
KirkW1 (Texas)
Posts: 1,665
Posted:
Set all the protesters adrift I say.

No really, while I am not a fan of D Trump I have to say that I see a beauty in having a flag as a marker on the coast line.
DonnaS (Tennessee)
Posts: 5,671
Posted:

KIRK,

CONGRATULATIONS TO YOU. THINK ABOUT THIS FOLKS, LIVING ON THE S.E. COAST OF FLORIDA---(90 miles from Cuba) THAT 100 FOOT FLAG FLIES PROUDLY p.s., The Coast Guard loves it there, acting as an entry point for people coming in on noodles and rafts.
KirkW1 (Texas)
Posts: 1,665
Posted:
Quote:
... The Coast Guard loves it there, acting as an entry point for people coming in on noodles and rafts.

See, one more reason to keep the flag flying there. The fuel to do patrols ain't cheap. So if he keeps the flag there it helps our nation's budget.

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