This landlord-tenant dispute raises the question: Can a flag be a safety violation?

Amanda Maher
Amanda Maher | 5 min. read

Published on September 6, 2016

When Jorge Emiliano “Nano” Rodriguez, 22, an electrical engineering student at Arizona State University, propped a gay pride flag against the fence in his front yard, he never considered he could be violating a clause in his lease.

As he explained, he placed it in yard shortly after the Pulse nightclub shooting in Orlando, and “Putting up the pride flag gave me comfort, and it was to show solidarity with Orlando and just kind of pay homage to all the lives that were lost.”

But a few days later, when he delivered his rent check, his landlord, Mary Sperl, confronted him about it. In short, Sperl said it wasn’t appropriate to hang the flag outside of the house where everyone could see it.

At the time, Rodriguez was upset by his landlord’s comments, but he also thought they might be in violation of his lease. When he got home, he combed through his lease and determined there was nothing in it that prohibited flying the pride flag. So he left it in the yard.

A short time later, Sperl dropped off a letter, again requesting that the flag be taken down. She cited a clause in the lease that states the “tenant shall at all times keep the premises clean, safe and shall carefully maintain the structure, fixtures, furniture, appliances, equipment and plants on the premises.” Flying the gay pride flag could “promote negative reactions and possibly harmful retaliation” against the tenants and property, she wrote.

But, Rodriguez still wasn’t convinced. He felt like the landlord personally targeted him because he’s gay, and he shared a copy of the letter on Facebook and the post has since gone viral. And, the landlord-tenant dispute has divided the Tempe community.

On one side are those who believe Sperl is well within her right to request the flag’s removal. The Federal Housing Act, a federal act protecting a buyer or renter from a seller or landlord’s discrimination does not apply in this case, as sexual orientation is not yet a protected class under the law.

On the other side, there is a contingent encouraging Rodriguez to file a complaint under the City of Tempe’s anti-discrimination ordinance, which would then be subject to review by the Arizona Attorney General’s Office.

Rodriguez is still pursuing his options, but in the meantime plans to keep the flag where it is.

“I’m not looking to press charges or do anything drastic,” he told the local newspaper. “I honestly just want to be able to fly the flag, and that’s it.”

So what should the landlord do? A few things to consider:

First and foremost, the First Amendment guarantees the freedom of expression. Flying a flag could, in some cases, be considered a freedom of expression.

Some states, like California, specifically allow tenants to post political signs and statements. Other states specifically protect a tenant’s right to display the American flag. But none of these laws would protect Rodriguez’s pride flag.

With that said, in this case, the landlord might consider going to take down the flag herself—but she risks being charged with theft of personal property, or worse, outright discrimination.

An alternative would be to bring the tenant to court. Sperl might try to argue that the flag violates the clause in the lease that requires tenants to keep the premises clean and safe—though Rodriguez could easily fight back and argue that (so far) he has done nothing to result in the property being unclean or unsafe. The fact that the flag might result in negative reactions is different than it actually resulting in a negative outcome.

What’s more, heading to court over a flag dispute could prove costly for the Sperl. This is especially true because there’s no guarantee that the court will side with her. As is often the case with landlord-tenant disputes, the final ruling could depend on the local political climate and the specifics of the case. Even if there is no formal law protecting Rodriguez, there might not be the political will to remove a pride flag—especially in light of the recent tragedy.

In an ideal world, the best strategy is to avoid disputes like these from in the first place. Obviously, landlords have a vested interest in the appearance and safety of their properties, and have certain rights to that end. If a landlord really wants to prohibit flags, political signs, holiday decorations or other “expressive” displays (assuming doing so is not in violation with local/state laws), the landlord should include a “prohibition clause” in the tenant’s lease. This is the only way to eliminate the gray area.

And importantly, if a landlord or property manager is going to enforce the “prohibition clause” it is absolutely critical that it is enforced consistently. If one tenant is told to remove a flag or sign and others are not, the landlord opens himself up to a discrimination lawsuit.

The big takeaway: set clear expectations from the outset, and then enforce all rules equally and consistently among all tenants alike.

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Amanda Maher

Amanda Maher is a self-proclaimed policy wonk who dabbles in real estate law. She holds a B.S. in Political Science and Sociology from Boston University, as well as a master's in Urban and Regional Policy from Northeastern.

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