The recent brouhaha over displaying the Confederate flag (okay, die-hards, it’s technically the Battle Flag of the Army of Tennessee or the Confederate Naval Ensign) has grabbed its share of national news headlines. It also has raised intriguing issues related to property management, renters’ and landlords’ rights, and leases.
Everyone has First Amendment rights to freedom of expression. But the courts and Congress have long held that landlords have private property rights that trump political and other forms of public expression on their property.
When it comes to the Star-Spangled Banner, this principle was actually codified into law with the Freedom to Display the American Flag Act of 2005, which restricted HOAs from prohibiting homeowners from displaying the Flag of the United States, while still recognizing the right of landlords to impose a restriction on renters.
This issue came up in 2013, when a Texas man displayed an American flag from his rental apartment and the property manager told him to take it down, stating it represented a threat to Muslims, according to local news outlet KHOU-TV News. (Note: The property management company has a different version of events.)
The law doesn’t directly mention other types of flags, much less flags of the Confederate States of America.
Landlords have an obvious interest in preserving the appearance of their properties, and few of them want every balcony in a residence hanging a different flag. They also have an interest in prohibiting conflict among residents, and between residents and neighbors and other members of the community. The flying of the Confederate flag, or a Nazi Swastika, or any number of other displays, could spark ill will and even provide an attractive nuisance to vandals, saboteurs, and pranksters.
So today’s issue du jour is the Confederate flag. But in the future it could be any number of other flags or emblems. Which gives the smart property owner an honorable way out: Have every lease contain language prohibiting the display of any kind of banner or signage visible from the outside. Don’t make any distinction as to the message. Just make sure your language is content neutral, and you should be able to enforce any breaches without a problem.
If someone does display such a flag, and you have language in your lease that restricts or prohibits displays and emblems, you can probably nip everything in the bud with a notice of violation with opportunity to cure, and give them a few days to take the flag or other emblem down.
Should you could make an exception for holiday flags?
The best way to answer this question is to check your state law, which may make specific exceptions for the U.S. flag, even for renters with no ownership interest in the property. For example, Florida protects the right of renters to display the U.S. flag, as long as it’s not permanently attached, not larger than 4.5 x 6 feet, and doesn’t infringe on other residents’ space. This state law trumps any language in the lease and any private agreement between a landlord and tenant.
Other states have specific protection in place for flags of the U.S. Armed Forces, the state flag, or the flags of Native American tribes. That might give you some safe harbor protection if you try to enforce restrictions against one type of flag and the resident points out other flags on the property and accuses you of discrimination or uneven enforcement.
But the safest course is this: Don’t try to pick and choose what flags or emblems you allow and what you don’t. Other than anything specifically exempted from your restriction by statute (for example, the U.S. flag in Florida), enforce the restriction on anything that they might display and don’t make exceptions. Otherwise, you could find yourself facing a discrimination claim.
That’s what happened to this landlord in Pompano Beach, Florida, when he asked his tenants to remove the gay rights “rainbow flag” after he received a number of complaints from the neighbors. The bottom line: No state specifically protects the Naval Ensign, the Battle Flag of the Army of Tennessee, or the Gadsden “Don’t Tread on Me” flag. Or the “Rainbow” flag, for that matter.
Managers of rental properties have a great deal of leeway in restricting flags and other displays, provided they keep their policies consistent and address the “time, place and manner” of displays and stay away from choosing favorites and banning some flags but not others.
Don’t let someone display the Israeli flag if you have a problem with someone in the next unit displaying the Palestinian flag, the Confederate flag, or even their college or fraternity flags. The minute you go down that rabbit hole, you create problems — and possibly expose yourself to litigation.
This blog submission is only for purposes of disseminating information. It does not constitute legal advice. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.
Flags are just one type of display that can cause conflicts in multifamily homes, neighborhoods, and HOAs. What problems have you seen, and how did you remedy the situation? Please let us know in the comments section below.
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