By Andrew S. Bennett
As of late, I have experienced an atypical amount of client inquiries regarding the display of flags and the installation of flagpoles in homeowners associations (“HOAs”). Since flags, by their very nature, tend to evoke emotions (of various kinds), it seems beneficial to provide an overview of Florida law regarding flags and flagpoles in HOAs, as well as other issues associations should consider when promulgating rules or restrictions addressing flags and flagpoles.
The Minimum Requirements
The first thing for HOAs and HOA members to be aware of is that Florida law ensures all HOA members at least some basic rights concerning the installation of flagpoles and the display of patriotic flags on their property.
Regarding flags, Section 720.304, Florida Statutes, allows a homeowner in an HOA to display up to two (2) of the following flags:
• The United States Flag
• The flag of the State of Florida
• The flag of the United States Army, Air Force, Navy, Marine Corp, Coast Guard, or
• POW-MIA flag.
These flags may be no larger than 4.5 feet by 6 feet. As for flagpoles, homeowners may also erect a freestanding flagpole, no more than 20 feet high, anywhere on the property, so long as it does not obstruct line of sight at intersections, or is erected on or within an easement. These rights apply “regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.”1
That means that if an HOA’s governing documents contain restrictions contrary to 720.304, such as an outright prohibition on flags or flagpoles, Florida law prevails and a member of such HOA can install a flagpole and display patriotic flags, so long such is done in accordance with 720.304.
However, this statute does not mean that associations are prohibited from enacting rules and restrictions regarding the display of flags or the installation of flagpoles. The Legislature’s intent with 720.304 was not to completely settle all issues concerning flags and flagpoles in HOAs, but rather to simply prevent the prohibition on flagpoles and the display of patriotic flags in HOAs.
Below is a list of issues concerning flags and flagpoles not addressed by 720.304 which both HOAs and members should consider.
There are lots of flags available today—team flags, flags of various organizations, flags of other countries, seasonal/holiday flags, etc. Only the flags specified in 720.304 override HOA restrictions. HOAs may restrict or permit all other flags. By an HOA’s governing documents remaining silent on the issue, the HOA is effectually permitting flags of any kind (not to mention any number). While such a stance is permissible, should an HOA wish to limit the type of flags, number of flags, or the times when such flags may be displayed (with the exception of the allowances in 720.304), the association should take affirmative steps to specify such in its governing documents.
Restating Florida Law
To provide members with helpful guidance, HOAs may consider restating the flag and flagpole allowances of 720.304 directly in their governing documents. Owners are more likely to consult their association documents than attempt to sift through Florida statutes. This courtesy can provide the added benefit of preventing possible conflict between members and HOAs. For example, some counties and cities allow flagpoles on single family residential lots to be taller than the twenty (20) feet specified in 720.304. However, 720.304 is a state-wide law specifically-directed towards HOAs, and therefore takes precedent over any local regulation when the house is located within an HOA. Specifying the state-mandated twenty (20) feet limitation in the governing documents could save the potential difficulty caused by a member requesting a contrary flagpole based on county or city regulations.
While an HOA is not allowed to prohibit flagpoles altogether, it is allowed to address the overall appearance of flagpoles, their maintenance, etc. If an association has an architectural committee in place, these aesthetic issues are best handled by this committee. However, in so doing, such committees must be sure to not be arbitrary in their decision-making process.
HOAs wishing to require association approval prior to flagpoles being installed should first check with the city and county as to whether local approvals or permits are required for flagpole installation. If such is the case, the HOA approval process will be streamlined by requiring members to submit HOA approval requests only after obtaining the requisite county or municipal permits and approvals. This can cause many of the issues which the HOA would consider in determining whether to grant approval (setbacks for example) to be addressed prior to even being submitted to the HOA. Thus saving time, effort, and cost for all parties involved.
Andrew S. Bennett, Esq.
– Real Estate
– Real Property Law