Condo and Townhouses -- flags

Post by **SonomaCat** » Wed Jul 19, 2006 5:25 pm

I am curious how people see this one, especially since the flag seems to bring about strange and incongruent arguments from many sources due to the emotion of the situation.

Do you guys agree with the law passed to disallow condos and townhouse HOAs from forbidding the flying of flags?

http://www.reason.com/hitandrun/2006/07 ... tml#014769

My view is predictable (I am a consistent Libertarian on this one): I think private entities can and should be able to do whatever the hell they want to do free of government interference ... as long as they aren't harming anyone else.

GOKATS · Post by **GOKATS** » Wed Jul 19, 2006 5:50 pm

It shouldn't require a law, but I fully agree with it.

Post by **SonomaCat** » Wed Jul 19, 2006 5:56 pm

GOKATS wrote:It shouldn't require a law, but I fully agree with it.

Just to clarify ... are you saying that you are in favor of not allowing condo and townhouse HOAs from setting rules regarding flags? I only ask because there are a lot of negatives twisting around in this argument, and I can't tell if I am throw out double negatives.

In other words, are you in favor of the government taking away private property rights from the HOAs?

Grizlaw · Post by **Grizlaw** » Wed Jul 19, 2006 6:20 pm

My brain is too fried to think too deeply about this right now, but I have to question the Constitutionality of this law. The article made no mention of it, but I wonder what Congress's asserted jurisdictional grounds are? Usually when they pass laws that intrude on our lives, the Constitutional basis is the Commerce Clause, but it would really be a reach to argue that this is a regulation of interstate commerce.

GOKATS · Post by **GOKATS** » Wed Jul 19, 2006 6:25 pm

Bay Area Cat wrote:
GOKATS wrote:It shouldn't require a law, but I fully agree with it.
Just to clarify ... are you saying that you are in favor of not allowing condo and townhouse HOAs from setting rules regarding flags? I only ask because there are a lot of negatives twisting around in this argument, and I can't tell if I am throw out double negatives.

In other words, are you in favor of the government taking away private property rights from the HOAs?

Sorry for the confusion...... I am in favor of not allowing condo and townhouse HMOs the ability to set rules regarding flags (small satellite dishes. etc.- but that's a different issue).

To me it's such a basic issue, that that's why I said it shouldn't require a law. It's not a matter of the government taking away private property rights from the HOAs, it's a matter of the government having to step in to prevent HOAs from taking away property rights from members of the HOA.

Grizlaw · Post by **Grizlaw** » Wed Jul 19, 2006 6:39 pm

Aside from the federalism issue that I mentioned in my last post, though -- I do favor the basic rights of POAs to pass rules governing their residents.

When a person moves into a condo, they (should) know that they are agreeing to live by certain rules (and that new rules may be enacted in time), and that they are obligated to obey those rules. Not everybody wants to live that way, and that's fine, but I don't think those that choose to live subject to the rules of a POA (while also accepting the benefits that are offered) should be prohibited by law from doing so.

Post by **SonomaCat** » Wed Jul 19, 2006 6:59 pm

GOKATS wrote:To me it's such a basic issue, that that's why I said it shouldn't require a law. It's not a matter of the government taking away private property rights from the HOAs, it's a matter of the government having to step in to prevent HOAs from taking away property rights from members of the HOA.

This is kind of a sub-issue, but in many cases (perhaps it is appropriate to say that this applies to condos specifically, but not townhouses), the HOA is the one that owns the exterior of the building. So in essence, the person who owns the condo doesn't actually own anything outside of the building -- the HOA does. Would that change your opinion? And anybody who knows more about the actual law in this area, please correct me -- I am going off of bar (the drinking kind) knowledge on this one exclusively.

In my view, as GL noted, the HOA (although often annoying) is the democratic representation ownership group, and I believe they should be able to make any rules they want to make. If they make enough dumb rules, they hurt the value of their own homes because nobody will want to play by their rules by buying into the group.

I should probably mention (before I get beaten about the head and shoulders by a radical patriot) that I have no problem at all with people flying flags of any kind, as long as they aren't tacky or obnoxious. I agree that making this a federal law is completely unnecessary (as it is purely for political reasons, of course). But further, I think it sets a bad precedent for government interference in other ways.

If this kind of law is okay and becomes the law of the land, does an HOA really have a leg to stand on if they want to tell somebody that they can't fly the confederate flag? Or how about a Che flag? Or how about a Chinese flag? I know this law is specifically for the U.S. flag, but the theory behind it and the usurping of private entities' abilities to set their own rules could have unintended consequences.

GOKATS · Post by **GOKATS** » Wed Jul 19, 2006 7:43 pm

Bay Area Cat wrote:
GOKATS wrote:To me it's such a basic issue, that that's why I said it shouldn't require a law. It's not a matter of the government taking away private property rights from the HOAs, it's a matter of the government having to step in to prevent HOAs from taking away property rights from members of the HOA.
This is kind of a sub-issue, but in many cases (perhaps it is appropriate to say that this applies to condos specifically, but not townhouses), the HOA is the one that owns the exterior of the building. So in essence, the person who owns the condo doesn't actually own anything outside of the building -- the HOA does. Would that change your opinion? And anybody who knows more about the actual law in this area, please correct me -- I am going off of bar (the drinking kind) knowledge on this one exclusively.

In my view, as GL noted, the HOA (although often annoying) is the democratic representation ownership group, and I believe they should be able to make any rules they want to make. If they make enough dumb rules, they hurt the value of their own homes because nobody will want to play by their rules by buying into the group.

I should probably mention (before I get beaten about the head and shoulders by a radical patriot) that I have no problem at all with people flying flags of any kind, as long as they aren't tacky or obnoxious. I agree that making this a federal law is completely unnecessary (as it is purely for political reasons, of course). But further, I think it sets a bad precedent for government interference in other ways.

If this kind of law is okay and becomes the law of the land, does an HOA really have a leg to stand on if they want to tell somebody that they can't fly the confederate flag? Or how about a Che flag? Or how about a Chinese flag? I know this law is specifically for the U.S. flag, but the theory behind it and the usurping of private entities' abilities to set their own rules could have unintended consequences.

I do have knowledge of the condo, townhouse, subdivision, laws (in Montana) as I deal with them every day, but to save face I am currently under your 'bar' rule as it's hotter than hell tonight, cold beer, and I'm 'bar' b quing.

PortlandCat · Post by **PortlandCat** » Wed Jul 19, 2006 10:59 pm

Actual condo owners own an undivided interest of all common areas, including the exterior walls, by virtue of "owning" a share of the HOA.

That said, there are good reasons for HOA's to be able to dictate what can and can not be displayed. The more common nuisances are Christmas decorations in July, lawn "sculpture" on an area you don't own and the association has to move to mow, and things like Nascar flags. What if some bozo want's to display a Swastika?

I have yet to see an association ban the flying of an American Flag at appropriate times. I have seen them control what are appropriate times, and size, placement, etc. Remember the Frazier episode with the flag draped over his balcony?

Doesn't the senate have better things to do?

briannell · Post by **briannell** » Wed Jul 19, 2006 11:28 pm

I say if your flag doesn't intrude on another owners property fly the flag, if they don't like it tell them to kiss your Ass!!!!!

freedom of speech gotta love it.

My whole take on the issue is if members of society can burn it than I sure as hell can fly it

ChiOCat · Post by **ChiOCat** » Thu Jul 20, 2006 6:57 am

My mom lives in a sub-division that requires you to get a permit to do anything to the exterior of your house, ie put a new screen door on, stain the fence, put in hedges. Downright rediculous, but they were fully aware of the covenenants when they moved in and still chose to buy there. They liked the assurance that their neighborhood would be maintained and not have that one obnoxious sunshine yellow house on the corner.

I think a HOA should be able to make any rules they want. Like you said BAC, too extreme and they only hurt themselves.

I personally would not choose one that didn't allow me to fly a flag. But I did live in one that told me my grass couldn't be too tall. Gotta love the choices you get in America!

BobCatFan · Post by **BobCatFan** » Thu Jul 20, 2006 12:38 pm

that law will not be found constitutional. Freedom of speech overrids all.

Post by **SonomaCat** » Thu Jul 20, 2006 12:46 pm

BobCatFan wrote:that law will not be found constitutional. Freedom of speech overrids all.

I agree with the first sentence (if anyone bothers to challenge it).

I tend to agree with the second sentence (with some very specific exceptions).

But I'm not sure that the two lines work together relating to this particular issue.

grizbeer · Post by **grizbeer** » Thu Jul 20, 2006 1:27 pm

I don't think congress needed to pass a law to deal with this, and I agree with Rebbecca, if you want to fly your flag fly your flag. Most likely nobody would say anything about flying your flag on Veterans day, Memorial day 4th of July, etc. If someone complains they send you a letter reminding you of the covenants. If they really wanted to enforce it they would have to take you to court to enforce the covenants, and really is anybody a big enough asswipe to take you to court for flying a US flag on Memorial day?

Now if you want to put a flag up and fly it year around and your HOA prohibits it, you might want to find a different place to live. But congress doesn't need to get involved.

Grizlaw · Post by **Grizlaw** » Thu Jul 20, 2006 1:32 pm

Bay Area Cat wrote:
BobCatFan wrote:that law will not be found constitutional. Freedom of speech overrids all.
I agree with the first sentence (if anyone bothers to challenge it).

I tend to agree with the second sentence (with some very specific exceptions).

But I'm not sure that the two lines work together relating to this particular issue.

Yeah, I agree that this law should be found unconstitutional (more on that in a minute), but it's not really a free speech case. I think this is strictly a case of "does the Constitution give Congress the authority to regulate this?" Because as we remember from our high school government class, Congress can only regulate matters that the Constitution expressly grants it power over; all other regulation is left to the states.

With the benefit of a half-night of sleep and a clearer head than I had when I posted yesterday, I suspect the government would argue that Congress has the authority to pass this law under the Commerce Clause. The argument would be that this law regulates the purchase and sale of residential real estate, potentially including purchases occurring between residents of different states, and thus, the law has the effect of a regulation on interstate commerce. That's obviously pretty attenuated, and it probably should lose, but it's seriously the best argument I can come up with that this is within Congress's jurisdiction. At various times throughout our history, the Supreme Court has interpreted the Commerce Clause even more broadly than that (e.g., allowing Congress to make the sale of illegal drugs a federal crime, even in cases where it is proven that the drugs in question were made, sold, and consumed in one state), so I suppose it's possible that the current Court would uphold this, depending on how broadly the Roberts court is going to read the Commerce Clause.

Or, maybe there's another argument that I'm missing. We'll see, hopefully...

--GL

Post by **SonomaCat** » Thu Jul 20, 2006 1:40 pm

I suspect this law will end up making some list in about 50 years similar to the "It's illegal in Joeberg, Florida to ride a horse backwards on a Tuesday while humming showtunes written by foreigners" type of laws.

It will be on the books, but nobody will care.

Cat Grad · Post by **Cat Grad** » Sat Jul 22, 2006 11:50 pm

I've had to live and abide by these regulations--on military installations. We took great joy in going around and tearing down asshole flags such as those flown in Mazzola, but never a U.S. flag. A symbol is sacred and ya'll can look up how many have died ensuring the colors are flying. Piss on this regulation--just like all the urinals with the Fizzlie logo in them!