Court Addresses Dispute Over Display of American Flag

American flag on Condo

Condominium by-laws, declarations and rules and regulations govern many details of residential apartment living and unit owners are obligated to comply with them even if they feel that they impinge upon their rights.  This point is illustrated by a recent lawsuit involving the display of an American flag.

A unit owner had installed a relatively small flagpole on the wall outside of his unit in order to fly a 2.5′ by 4.5′ American flag over an interior courtyard.  The condominium’s board sought to enjoin the activity, claiming that the unit owner violated the condominium’s declaration, by-laws and rules and regulations because they did not permit the exterior walls to “decorated” without the condominium’s consent, did not permit the placement of “personal articles” in the common elements, and did not allow articles to “be hung out of a unit”. The board also argued that the flagpole installation could damage the building and that the flag and flagpole, because they hung over a common area, posed a threat to safety.

The unit owner defended the proceeding by invoking a provision of the New York /Condominium Act that provides general authorization for a condominium board to seek injunctive relief for violation of condominium requirements, but provides specifically that “no action or proceeding for any relief may be maintained due to the display of a flag of the United States measuring not more than four feet by six feet”.  The unit owner also invoked a number of patriotic arguments.

The Court found that, notwithstanding the provisions of the Condominium Act regarding the display of flags, the condominium had nonetheless demonstrated a balance of the equities in its favor that warranted granting it relief because the flagpole was flying over an interior courtyard and many residents, guests, and occupants utilized that space on a regular basis.  In the court’s view, it was reasonable to enjoin the unit owner’s exterior installation of the flag so long as the unit owner was still free to display the flag within his unit.  While the statute prohibited the board from preventing a unit owner’s display of the American flag, it did not prohibit the board from enacting rules and regulations relative to the location and installation of that display.

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