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June 18, 2006

It must be an election year

Its that time again ---- time to roll out all of the legislation to cater to the emotions of special interest groups -- in other words, an election year. Congressman Bartlett (R-MD) expects to bring to the House floor soon the “Freedom to Display the Flag Act,” a resolution that would bar condominium associations, cooperative associations or real estate management associations from creating restrictions on flagpoles to fit building or neighborhood standards. Here is the bill, originally introduced in 2005:

109th CONGRESS

1st Session

H. R. 42
To ensure that the right of an individual to display the flag of the United States on residential property not be abridged.

IN THE HOUSE OF REPRESENTATIVES

January 4, 2005
Mr. BARTLETT of Maryland introduced the following bill; which was referred to the Committee on Financial Services
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A BILL
To ensure that the right of an individual to display the flag of the United States on residential property not be abridged.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Freedom to Display the American Flag Act of 2005'.

SEC. 2. DEFINITIONS.

For purposes of this Act --

(1) the term `flag of the United States' has the meaning given the term `flag , standard, colors, or ensign' under section 3 of title 4, United States Code;

(2) the terms `condominium association' and `cooperative association' have the meanings given such terms under section 604 of Public Law 96-399 (15 U.S.C. 3603);

(3) the term `residential real estate management association' has the meaning given such term under section 528 of the Internal Revenue Code of 1986 (26 U.S.C. 528); and

(4) the term `member'--

(A) as used with respect to a condominium association, means an owner of a condominium unit (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association;

(B) as used with respect to a cooperative association, means a cooperative unit owner (as defined under section 604 of Public Law 96-399 (15 U.S.C. 3603)) within such association; and

(C) as used with respect to a residential real estate management association, means an owner of a residential property within a subdivision, development, or similar area subject to any policy or restriction adopted by such association.

SEC. 3. RIGHT TO DISPLAY THE FLAG OF THE UNITED STATES.

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

SEC. 4. LIMITATIONS.

Nothing in this Act shall be considered to permit any display or use that is inconsistent with--

(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or

(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

This last part is interesting, since no one will be able to agree on what is "reasonable" or what a "substantial interest" means. I can see more litigation ahead.

In California, the state Senate just passed SB 551, which creates an ombudsman's office, and in order to reduce the trial load of civil courts, establishes a mechanism that allows owners to file complaints agains associatons (of course if they were serious about reducing the court cases, they would also handle enforcement actions by the board against an owner, so reducing the trial load is not the real issue), allows for associations to be fined if they don't correct anything the new bureau tells them to (of course it doesn't mention that it will be the owners who actually pay the fine), and establishes a new level of bureaucracy that the owners will have to pay to support. It requires board members to sign a document that they've read all of the CC&R's, rules, and the Davis-Sterling Act (or summary - its the state's Common Interest Development Act) and provides for education of board members. This one is going to be fun to watch. If it passes the House and is signed by the Governor, its going to take years and a lot of litigation to figure out.

Florida, Nevada and Arizona are also hotly in pursuit of additional legislation designed to reign in those thousands of incompetent and abusive boards that the owners elected. Well, that problem is going to be solved fairly soon, when it becomes next-to-impossible to find anyone to run for a board. I'm sure the ownrs will prefer a court-appointed receiver telling them what to do instead.

Posted by joewest at June 18, 2006 8:15 PM