Flag and Sign Display Considerations for Washington Community Associations

A recent story on The Upshot blog chronicles how homeowners in Arizona and Colorado have fought their associations to fly their flags of choice (a "Tea Party" flag and a "Don't Tread On Me" flag). Both homeowners associations initially demanded that the owners remove the flags. The owners resisted and threatened legal action. The Colorado association eventually decided to reclassify the flags at issue as political signs and allow them. The Arizona association maintained its strict interpretation of that state's law and refused to permit the display of the owner's flag. It is unclear whether the owner in that dispute will challenge the association's position in court.

The Freedom to Display the American Flag Act of 2005 is a federal law that protects citizens' right to display the U.S. flag. It prohibits condominium associations, cooperatives, and real estate management associations from taking action to prevent residents from displaying the U.S. flag on their property in accordance with the Federal Flag Code. The Act permits associations to impose reasonable restrictions on the time, place, and manner of flag displays if those restrictions are necessary to protect a substantial interest of the association.

The Washington state law governing homeowners associations protects the right of owners and residents to both the outdoor display of the U.S. flag on their property and the outdoor display of political yard signs on their property before a primary or general election. Homeowners associations are permitted by those statutes to impose reasonable rules regarding the placement and manner of displays of the U.S. flag and political yard signs.

The Washington state laws governing condominium associations, on the other hand, do not contain any provisions protecting the display of flags or political signs. Washington condominium associations are still required to permit the display of the U.S. flag in accordance with the federal law discussed above, but they do have more freedom than homeowners associations to restrict political signs.

Community associations' governing documents often contain provisions restricting the ability of owners and tenants to display flags and signs, and such provisions are enforceable as long as they do not violate applicable federal and state laws. Since attempts to end flag and sign displays often provoke strong emotional reactions and can incite litigation, boards should base enforcement actions squarely on the standards stated in their associations' governing documents and apply those standards uniformly across their communities.

Smoking in Common Areas - Permit or Restrict?

As the old saying goes, where there’s smoke there’s fire. Community association boards are sometimes confronted by the fire of owners’ anger when they are bothered by other owners’ cigarette smoke. However, boards do not have the power to prevent owners from smoking in their units and in the common areas unless there are restrictions on smoking in their associations’ governing documents (the 2005 Seattle initiative restricting smoking does not apply to condominium and homeowners associations).

A recent lawsuit in California illustrates how far some owners are willing to go to be free of cigarette smoke. The Oakwood Apartments permit smoking in the outdoor common areas of the complex. Melinda Birke, a five-year old girl who has allergies and asthma, lives at Oakwood. Secondary smoke in the outdoor common areas made her symptoms worse and contributed to her falling ill with pneumonia on three occasions. Melinda’s father asked the board to ban smoking in those areas, but it refused to do so. Melinda then filed a lawsuit against Oakwood alleging that the failure to ban smoking in the outdoor common areas constituted a public nuisance. Oakwood filed a motion to dismiss Melinda’s lawsuit. The court ruled that Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and that Melinda could prevail if she submits evidence at trial that supports the elements of her public nuisance claim.

It is difficult to predict how a Washington court would rule if it was presented with the facts in the Oakwood case. The nuisance statute in Washington states in part that a failure to perform a duty is a public nuisance if it “annoys, injures, or endangers the comfort, repose, health, or safety of others” and “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal”. Given this broad definition of public nuisance, the outcome of the case would likely depend on how the court characterized the association’s duty to regulate the use and maintenance of the common areas. The fact that many associations’ governing documents contain a section prohibiting “noxious or offensive activities” and “conduct which may be an annoyance or nuisance” could also form the basis for a separate legal claim.

The Oakwood case demonstrates that condominium and homeowners associations which allow smoking in their common areas could potentially be subject to liability. As a result, boards may wish to consider amending their governing documents to ban or restrict smoking in common areas. The applicable laws in Washington give condominium and homeowners associations the general power to regulate the use and maintenance of common areas. Rules banning or restricting smoking in common areas can therefore be adopted by boards without a vote of the owners unless there are contrary provisions in their associations’ declarations or covenants.