Flags: What Everyone Ought to Know About Idaho’s HOA Flag Rules

​By Gregory B. Coxey, Partner - Vial Fotheringham

​Flags are something you see every day and with summer holidays coming up, flags are going to be everywhere you go. Flags can mean different things to different people, they can represent countries, ideas, holidays, and even politics. Flags have a long history, and regardless of what they represent, they will continue to be put on display by people all around the world. However, what happens if you live in a Community Association that has restrictions when it comes to displaying flags?
 
You can display an American Flag.
In 2005, the "Freedom to Display the American Flag Act of 2005" was enacted by Congress prohibiting Community Associations from unreasonably 

restricting or preventing a member of the association from displaying the flag of the United States on residential property within the association. This means that an American flag is allowed to be displayed.
 
This does not mean any U.S. Flag can be displayed in the Association. This act only allows protection for the traditional, red, white, and blue, 13 stripes and 50 stars flag, “Old Glory”, originally designed by Miss Betsy Ross herself. The act does NOT protect variations of the U.S. flag.
 
Please note that even though federally you can display a U.S. flag, the Association still has the ability to reasonably restrict the time, place, and manner of where you display the flag. This means that you should check your Association’s rules if you are ever unsure about whether your flag is allowed. These restrictions would be found in your Community Association’s governing documents, which usually include the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs), Bylaws, and any other rules and regulations adopted by your community.  ​

​Some examples of when the Community Association may ask you to move your display: the flag is situated on an old pole and is dangerous to those who walk by, or the flag is too big and is covering the neighbor’s windows.
 
Check your state’s laws to see if other flags are protected
Some states will enact additional laws that further prohibit Community Associations from banning certain other types of flags. However, the laws will usually provide that Community Associations have the right to reasonably restrict the time, place, and manner of where you decide to display these exempted flags.
 
Idaho has adopted laws that add further guidance on how Community Associations may restrict flags. In addition to the "Freedom to Display the American Flag Act of 2005" which allows the U.S. flag to be displayed, Idaho has added additional flags that also may not be outright prohibited. An Association may not prohibit display of: the flag of the State of Idaho; the POW/MIA flag; or an official or replica flag of any branch of the United States armed forces. This means that if you live in a Community Association in Idaho, you can display any of the flags listed above but remember that the Association does have the ability to reasonably restrict how, when, and where you display your flag.
 
Idaho laws also allow an Association to adopt reasonable rules that restrict or control how flags are to be displayed. An Idaho association may adopt reasonable rules that:

• Require the US flag and the state of Idaho flag to be displayed in the same way as federal laws have determined are acceptable. See 4 U.S.C. 5 et seq.
• Require the displayed flag to be maintained in good condition. If the flag is deteriorated, the Association may require that it either be repaired, replaced, or removed.
• Govern the size of the flag being displayed
• Govern lights used to illuminate the flag by adding size, location, and intensity requirements.
• Prohibit an owner from displaying flag(s) on either (1) property that is owned or maintained by the Association, OR (2) property that is owned in common by the members of the Association.

 
If you have a front yard and you comply with the Association’s rules and regulations, you may further elect to install a flagpole. However, per the running theme, the Association may adopt reasonable rules that:

• Require a permanent flagpole that is either attached to the home or on the property to be made with materials that are long-lasting AND harmonious with the dwelling.
  • Some examples of what would likely be forbidden: using a tree branch that is taped to your house as a flag pool or using a pool noodle to display the flag. 
  • Harmonious means the flag pole must fit within the Associations aesthetic or design.
• Require the flagpole to be maintained in good condition. If the flagpole is structurally unsafe, the Association may require that it either be repaired, replaced, or removed.
• Regulate the size, number, and location of flagpoles on which flags are displayed but the Association must allow at least one flagpole per property to be displayed. However, the Association may adopt rules that affect how a flagpole is erected.
  • The Association may prohibit the flagpole if it is in the front yard of the property and over 20 feet tall in height.
  • The Association may regulate the flagpole if it is attached to the home and it is not maintained by the Association.
• Impose restrictions that are aimed at reducing noise caused by the flagpole, for example: large metal chains clanking on a metal flagpole.
• Prohibit an owner establishing flagpoles on either (1) property that is owned or maintained by the Association, OR (2) property that is owned in common by the members of the Association.

 
Check Community Association’s Governing Documents
Remember to ALWAYS check your Association’s governing documents if you are unsure whether a certain flag is allowed. If you know you live in a particularly strict Community Association, always check the governing documents before putting a flag on display that isn’t the American flag or one of the states exempted ones. If your Community Association validly requests you remove your flag, the best thing to do is to take it down. If the flag remains up in violation of the Community Association’s request, additional fines may be added to your next Community Association dues.