The General Assembly recently adopted amendments to the Property Owners’ Association Act and the Condominium Act that address associations’ ability to regulate the display of the United States flag. The amended Virginia Code sections follow the language of the U.S. Code (The Freedom to Display the American Flag Act of 2005), which is the federal law regarding the U.S. flag in Title 4, Chapter 1. POA and condominium boards and managers, and declarants and their attorneys who are preparing covenants and rules for POAs and condominiums, need to be aware of the new law. The amendments to Va. Code Sec. 55-79.75:2 of the Condominium Act and Va. Code Sec. 55-513.1 of the POA Act are essentially the same, so I will discuss them together.
The new law provides that no association (POA or Condominium) shall prohibit an owner from displaying the U.S. flag on his own property (lot or unit) as long as the display conforms to federal law, rule or custom. You can find the official rules governing flag display in Title 4, Chapter 1 at the U.S. House of Representatives’ website ( http://uscode.house.gov/search/criteria.shtml). (There are also several helpful non-governmental sites run by non-profit organizations that you can find by performing an internet search of "flag protocol.") However, an association may continue to "establish reasonable restrictions as to the size, place, duration, and manner of placement or display of the flag on such property provided such restrictions are necessary to protect a substantial interest of the (unit owners’) association."
In addition, be aware that, in any legal action brought by an association for violation of a community flag restriction, the association bears the burden of proving in court that its restrictions as to size, place, duration, and manner of placement are necessary to protect a substantial interest of the association. Therefore, these criteria should be carefully considered when drafted, and existing regulations should be evaluated to ensure they protect your association’s substantial interests. If not, you may want to consider amending or revoking them.
Associations may continue to restrict the display of flags in the common elements/areas of the community, but any limited common element (i.e. any area over which an owner has "exclusive possession or use"), such as, for example, typically a unit’s balcony or porch, should be treated the same as the lot or unit with respect to flag display.
Remember that POAs must disclose any community restrictions regarding flag display in the disclosure packet. If an association fails to do so and then brings an action against a homeowner for flag display in violation of the association’s rules and/or covenants, the homeowner can assert as a defense that the required disclosure was not contained within the disclosure packet.