Flagpoles and Related Issues

It is a no win situation when it hits the media. Not that your concern is not valid with the flag pole. Most people will not see it that way when news spread.

What we did is just install a main flagpole at our front entrance. That way it is shared fairly amongst all the members. Plus we installed a light to shine on it if left out at night. There are rules on how to fly flags correctly. Something you all should look up and educate everyone on. That way it may help put the limits on what you all want without stirringnthings up.

Here is a solution that is not pleasant since you may be talking to a lawyer. You may want to talk this solution over with them as they most likely won't mention this to you. The HOA can remove violations and send the owner the bill. If the owner does not pay that bill, that bill can be the basis of a lien. I state this because many HOA's are under the impression they can fine for violations. Except most of them don't have the DEFINITION of the fine written anywhere. Plus fines can NOT be the basis of a lien/foreclosure in most states.

When you talk to the lawyer ask them about having a fining schedule in place and how best to establish one. This way your HOA can fine for violations of the convenants properly. (I'd leave out the fact you can't lien/foreclose for not paying. People get wind of that and they will never pay a fine). The other option is how best to go about removing violations and sending the member the bill. That has the teeth you may be looking for if you want to be aggressive.

Your HOA can even paint a home if it violates the color scheme if you take the proper steps and can afford such expense. I hesitate giving this advice as it is quite extreme and gives the HOA quite a bad reputation. However, there are some situations this is required and I will give that advice to you if things get ugly. Which in these cases of flags they do really fast.

We do have experience with filing liens. We used to have a lawyer do that for us, but he very kindly showed our past president how to do this herself. Whenever someone is 90 days past due in their association fees, we file a lien. This has really helped as we went from 5+ units being significantly past due to have no units in that group.

Our bylaws do not in any way reference fines, nor have fines ever been issued for any matter. (I'm of the opinion that our bylaws are probably fairly tradition from the era (1980s), but are not clear in some elements.) There is specific reference to the board having the right to pursue "injunctive relief and actual damages" for "enforcement of these restrictions or any violations of the Master Deed or its exhibits." In reality, the only thing that has ever happened here that might be finable would be people that walk their dogs and not clean up after it. The last thing I want to do is become the dog poo policeman. My sense is that our regulations do not currently empower us to issue fines, and I do not want to create an environment where everyone tries to get everyone else fined. I see that as opening Pandora's Box.

One of my first questions to the lawyer will be whether or not we could include his fees in what we sue for if we ever have to sue a unit owner for a situation where they violate the bylaws and we have to seek judicial remedy.

I am loathe to do this, but I had wondered, as you noted, if given that the flag pole is on common property we couldn't just hire a company to remove it. I do not want to do that, as I'd prefer to resolve the situation, not escalate it.

Thanks again, everyone, for helping me think through this and offering your advice.

Well, there are new developments that I wanted to update everyone on.

Last evening the Board met to discuss a variety of business. As a part of that the issue of the flag pole was brought up. I suggested, and the Board approved, that we seek legal counsel on the matter and either (a) have the lawyer prepare correspondence indicating that the placement of the flagpole is OK so that this can be circulated among the membership, or (b) have the lawyer prepare correspondence to the homeowner indicating that this placement is not OK and requesting that the flagpole be moved to a more central location in the complex, incorporated into the landscaping, and permanently lit. As of this morning we have a call out to a lawyer but have not done anything else.

I received a call an hour or so ago indicating that a local TV station has a vehicle parked in front of the unit with the flagpole. As I was running errands I drove by the location and saw the vehicle there. Just now as I am typing this my doorbell was rung and the TV station vehicle is in my driveway. As I'm not presentable, I didn't answer the door.

I'm really flummoxed by all of this as (a) the Board has not taken a position on this, so I have no idea what the controversy could be, and (b) the gentleman with the flagpole is the association VP. I don't understand what his motivation would be for trying to stir up controversy. I guess I'll find out later today should this make it onto the news.

Good advice (especially on mediation, which I think people should try before duking it out in court).

However, if this homeowner was once a board member (and an officer at that), I would think he or she knows or should know the rules already. No one likes these issues to be settled in court, but it seems to me too many people are incapable of resolving problems peacefully and run to the court at the drop of a hat because they don't get their way. I wonder how this homeowner would react if the people next door or across the street put an equally large whatever on his/her front lawn.

This person knows exactly what he was/is doing - if they were interested in resolving it without an attorney or the media, they would have already done so. When people document their attempts to resolve the matter in an adult matter, but they get blown off, I can see when a letter from an attorney or a call to the newspaper's action line may be appropriate.

Instead, these people run screaming to the media and we get yet another story about the big, bad insensitive HOA who's trying to deny someone their right to fly the flag. I'm all for patriotism, but too often, people make assumptions of what they can and can't do, won't crack open the Bylaws or CCRs if their lives depended on it and then throw tantrums like a three year old because they were told they, too, have to follow the rules.

If you don't like the rule, you go through the proper channels to amend or drop it - talk to your neighbors, distribute a petition, attend a meeting. If that doesn't work, feel free to vote the board out and put in someone who'll do what you want (at least until you get pissed off at THEM for yet another reason)

Thanks, all, for the new comments.

I think one element of note here is that this person is the current Vice President of the Board, and has been for about 10 months now. A few years ago he was the President. I don't really see how this is a situation where he would not be informed about the matter.

There are several other elements at play here that I haven't brought up to this point because I can't decide if they are material or not. This gentleman is very disrespectful to women, and probably 75% of the residents of this complex are older, retired women. Except for myself, the rest of the Board is women, and I observe him treat them very dismissively.

While I like the idea of brokering peace, and it is what I have advocated to the Board, I lack the ability to go and have the conversation with this gentleman as I've become too close to all of it. I'd welcome, and will suggest, that the other Board members consider going. I think the current President and Past President are the right people to do this--but I have little hope in any peace being brokered. Given that this gentleman has engaged the media, I'm hesitant that anyone go and speak to him for fear of their being dragged into that aspect of this.

Shelia,

Thank you for the compliment on the "good advice."

Somehow I did not see any postings and responded without knowing the progression of this situation.

I have since made other postings with my thoughts and recommendations for proceeding.

My number one move at this point would be calling in a mediator. This community is not in a financial position to engage in a legal battle (even if they will win, they will lose)and this VP is well-aware of that and knows the status of their financials. He is going rogue in an effort to cause so much chaos the other board members will freak out and resign so he gains control again as president. Adding to that, the guy also appears to have "female" issues and the board is comprised of a majority of females.

I've seen, heard, and read so much in my studies of HOAs, I can almost predict what this guy is up to, but on the chance I am wrong I will keep those thoughts to myself.

The flag pole is not about patriotism. It's his weapon of mass destruction. A good mediator will call him out on it.

Sadly, another day in HOA H*LL!

NDR

Tony,

I hear you. I feel your pain. You are suffering from HOA Syndrome. I've had it for 3 years. The stress has caused me to have health problems. I have lost all the pigment in my skin. I have shingles. I've gained weight. I've lost sleep. The only cure....and my doctors and my attorney have told me repeatedly....GET OUT OF THE HOA BEFORE IT KILLS YOU!!!!

I've put in over 100 hours per week for almost the past six years. No pay. No appreciation from my neighbors. I've worked with state legislators to pass a law to govern HOAs. I'm now part of a national movement to raise HOA awareness and work for reform with the help of legislators.

There is so much good advice and help out there but the restrictions of this website will not allow me to provide you with it.

I'm sticking with my advice to call a mediator. An attorney is going to bill for reading your CC&Rs, making recommendations, writing letters, talking to the board, etc etc etc....and before you know it....$35,000 or more will be gone in legal bills. It's not worth it over a flag pole. Plus, when you try to sell if there is no money in the reserves, the media has exposed your HOA, and the mortgage companies gets spooked...you'll be stuck with this nightmare place or selling it for pennies on the dollar. My HOA is such a nightmare for me to sell I will lose at least $200,000.00. That's not based on inflated value. Nope, that is cold hard-earned cash.

You might spend a few hundred....maybe a thousand on a mediator....but it's worth a try. And in your case, it is probably best to hire a male.

I've had hundreds of attorneys as clients. The one thing I've always been told....bring us any case, the nastier the better. If it's not nasty when it walks through the door we know how to make it nasty fast. Attorneys have to eat, too!

Be careful about firing the first shot on this legal battle ground...once the war begins it's hard to get it stopped. In the end, you very well will win the battle but you'll lose the war. Either way, I promise it will be the most expensive flag pole you'll ever purchase.

Keep us posted. And buy you and your wife a nice hotel room and a nice dinner for one night. Get away from the environment for a few hours and when your thoughts so back there...do not allow it, do not talk about it, and do not give it the power to ruin your relaxation time! I run away to my favorite resort about twice per year. I don't check emails, I don't answer my phone, and I don't talk about my HOA. If I didn't do that I would probably already be dead.

Take care!

NDR

Really?

Doing an internet search for "HOA Syndrome," defined as a form of Post Traumatic Stress Disorder, indicates that it is a term created by one individual, a psychologist, who has made a name for himself as a homeowners rights advocate who, based on my "brief" research, wants to make changes through legislative action.

I don't disagree with everything the individual is trying to do. Perhaps this action is needed in the State he lives in. I do disagree with trying to create a physiological disorder for what appears to be personal gain.

Yes I know Nila, we will have to agree to disagree.

Tim

Tim,

Long before I heard of and read about HOA Syndrome, my doctors tested me for everything under the sun trying to figure out why I was losing the pigment in my skin. I saw the best of the best of medical professionals. All the tests kept coming back negative. Finally, the specialist said, we have ruled absolutely everything out except stress. Is there something in your life that is stressing you out because you have the signs and symptoms of PTSD? Perhaps he was thinking at her age how could this woman have just come home from a war zone doing military service? I said, yes my Homeowners Association. He looked me straight in the eyes and calming but firmly said, "Get out of there before it kills you." He then asked if I wanted to be put on medication to reduce the stress and since I don't like the "pill pushing" that goes on in America I opted not to join the masses. He told me I cannot be out in the sun. I cannot sit by a window with sun coming through it in my home. I must always wear sunscreen when in a car. Why? Because I am now a very high risk candidate for skin cancer.

At the time of the mediation of my case with my HOA, the discussion of my health problem came up with the mediator; a retired district court judge and lawyer himself. It came up because my attorney told him this situation had gone on for so long and he was concerned about my health and the toll it was taking on me. The mediator said, tell me about your health issues. I did. He asked, would your doctor bring your medical records into a courtroom and testify to what you've told me? I said, I have no idea why he wouldn't. He was very perplexed about my condition and had me tested for everything he could possibly think of. With that the mediator looked at my attorney and said, if these people don't settle this case today, you are going to amend her petition and sue them for tort of outrage! With that, he got up and walked over to the room where the board and their team of attorneys were and came back and said, I just told them about your medical condition and what your attorney is going to do. Their attorney is going nuts!!! He's saying you can't do that but I've gotten him straighten out on his thinking. YOU CAN and YOU WILL amend this petition. You are dealing with a bunch of Nazis! At that point the board and their legal team were ready to settle out of court. And we did.

I've read the details of HOA Syndrome, and I've communicated with the doctor. While others may not believe him or poo poo his research because I am a living example of it, I believe him. I am not educated in the medical field enough to tell him he's full of garbage. I suppose anyone who discovers a disease or a cure is seeking recognition for it? I certainly have no problem with that. Many diseases and cures are named after those scientists. This doctor is calling it HOA Syndrome. I have also watched his youtube videos and he makes sense to me.

I don't recall the state you are in, Tim? I do know in my heart of hearts that HOA Reform needs to take place all across this nation. I base that on my research and discussions with people all across this country. We cannot begin to "fix" what we do not acknowledge is broken. You see lobbyists tried very hard to convince the legislators in Kansas that my case and one other in Wichita were isolated cases of HOA problems. Some may knock Kansas legislators but I can tell you they listened to both sides. They researched and many of them live inside an HOA....one even lived in my HOA 20 years ago and said it was a mess even back then. Times have changed. People have changed. Life has changed. And HOAs need to change or be banned. I read a website every day that posts stories that have appeared in the media about HOAs all around the country. It's a priceless website and so is the book that bears the same name. Violence is happening in HOAs. Two or three board members were shot and killed in Louisville. And there are others but I can't recall the cities. Neighbors at war are not good for living conditions, health, real estate values, the economy, or the future of our country. We have to face reality. There is no other option.

But...you and I can agree to disagree.

NDR

Tony,

The person who put up the flagpole has created a media circus by wrapping the issue in God, Country, Apple Pie, and Motherhood. You do not have to play his game.

The issue is that an owner built a structure in the common areas without seeking the association's approval. Henceforth, I recommend referring to it not as a "flagpole" but as an "unauthorized structure" or just the the "structure." This will help take the emotion out of the debate.

Your press release might then read, "A resident erected a structure on property he does not own or control. Our association has exclusive control over that property and has demanded that the resident remove the structure from our property. Anyone wishing to donate property for the structure should contact the resident directly."

Well, here's the latest update for those following along.

Tonight my wife, who is also an officer, called the gentleman to talk about a variety of issues. As a part of this she very politely and quite deftly (much more so than I would be able to) asked him if he would consider allowing us to move the flagpole to a very prominent area that is central to our complex, landscape it, and light it. He refused. He is quite dug in on the matter.

As a part of this same conversation my wife commented that she heard a news crew was in the complex today and she wondered if he knew why. (I think she might have actually brought this up first.) He indicated that he did not call them, but they came to talk to him about his flag. While it might be true that he did not call them, one of his friends almost certainly did.

Apparently there will be a story about this on the news tomorrow evening. I know that one other "pro pole" person was interviewed, and at least one very much "anti pole" person was interviewed. Someone brought me the reporter's business card this evening with the request that I call him. I'm not sure what I'll do. I was contemplating emailing him.

There is a good bit of contention among various parties as to the "right" to erect a pole and fly a flag. This gentleman contends that federal law gives him this right. As a few people have observed, that is the fundamental issue. He put up a structure on common property without approval. He (and likely his 'followers') don't believe that. It's clear that he's not agreeable to voluntary mediation.

As I noted before, he is the vice president, so that is a complicating issue. We have repeatedly emphasized in our discussion with him that we want to make sure we abide by any and all laws and any and all bylaws.

What I believe our next step will be is for us to contact an attorney, give him a copy of our bylaws, and ask him to write a legal opinion stating whether or not this installation of a flag pole is inappropriate. If so, we will confront this gentleman with that and see where that leads. If, perchance, the lawyer says that our bylaws permit this or federal law supports it, then we'll comply with that. Either way, we will make both the resident and all of the members aware of the lawyer's opinion.

Hopefully that would be sufficient to resolve this. I'm doubtful, but I've become very pessimistic about this.

At this point I need to find a lawyer to help with this. I've called one and left a message, and another officer did the same. Neither of us have received a return phone call.

Tony,

Thank you for the update. I've been thinking about you all evening. So sorry you haven't had a break from this all day.

It sounds like your wife did her best...that's all she could do.

We all have a legal right to fly the flag. We do not have a right to erect a flag pole. There have been some foreclosures over this very issue. Depending on your state and how much you plan to spend on litigation your attorney will no doubt find these similar cases and use them for your HOA's defense.

My gut feeling still tells me the flag pole is a smoke screen. You did say this guy left the position of president with $20 in the bank and now you have managed to put $40,000.00 in there correct? And you reduced lawn care by $10,000.00, correct? My intuition and HOA experience sends red flags up.

Should you end up with the flag pole in a different location you can access flag etiquette on the internet. This tells you about how the flag SHOULD be displayed. There are no laws. The Governor of your state and the POTUS are the only people authorized to order the flag lowered to half mast. If you wish, you can go to your Governor's website and sign up to receive email alerts for when he orders the flag to half staff. On private property that is not required but it is a show of respect should you chose to do it.

In the mean time, I am hoping you will be able to stage your house and put it on the market. I feel sure your new home will not be located in an HOA.

Better days ahead...

NDR

Thanks Tim for posting that. I could not find my copy. Only had a hard copy of the rules. Believe me, when you have proud veterans in your HOA, you fly that flag with full respect. They know the rules. It really bugs me now to see people fly their flags half staff when the President has not ordered it so. The state can have their flags fly at half staff per the governor but the American flag must fly at the top of any flag on display.

There is so much meaning to flying the flag. That should be pointed out to the media. The concern should be focused on the HOA's concern that the flag will not be flown according to the US code. How do they then enforce that?

Tony,

Your board seems to be in serious need of testosterone treatments and plus some remedial shock therapy. Do you really honestly believe that there is a federal or state law that says a person can erect a flagpole on property he does not own without permission? You yourself should be able to read and understand your own CC&R's and bylaws, otherwise you would not be on the board, would you? I often suggest that associations seek out legal advice but this situation is just plain nuts.

If Mr. Flagpole is the VP then fire him. You cannot remove him from the board (assuming that your officers are also board members) but you can remove him from his office as vice president. Officers serve at the pleasure of the board and no board in its right mind would allow a person involved in a turf war with the association to serve as VP.

Remove the flagpole without notice or apology. Just do it. Get rid of it. If the VP has a problem let him spend his money on a court order. If he sues you, your insurance should kick in to cover your legal fees.

If your Association is incorporated, corporate laws would apply. Corporate laws typically address the administrative and organizational issues in corporations. If your Bylaws are silent on removals, Corporate law will typically have something about it.

Sorry to follow up on my own post, but if you do visit the news link there is also a link to a Facebook page set up about this. There are a huge number of comments and various people trying to organize protests. Of course, no one is focusing on the real issue, but I expected that. Hopefully things will die down after a few days. That's my hope at least.

For any who might be interested now or in the future, I thought I'd update this thread on our "solution." This strikes me as one of those situation where one can be in the right but still in the long run lose. I counseled our Board to work out a compromise and so that is what is happening.

We were fully in our rights to demand the removal of the flagpole. A local attorney advised us of such. However, none of us on the Board were excited about that option. Given the media coverage, the protests, etc., I could see this becoming a national news item like some others have in the recent past. (The parallel to our situation and one recently in Huntsville is quite remarkable: http://whnt.com/2013/02/26/local-hoa-denies-soldier-the-right-to-fly-american-flag/)

We decided to offer the resident the opportunity to keep his flagpole, provided he sign a legal waiver agreeing that he bears full responsibility in the event the pole ever damages any property or injures anyone. Further, he must remove it should he (or his estate) ever sell the property in the future. This waiver is still being drafted, but he has agreed to sign it.

Ultimately, I have seen this as a no win situation, and this is about the best outcome I could develop.

Tony,

Actually the waiver needs to include what happens when the property is sold.

Will the pole come down at that time?
Will the new owner be responsible for it?
If the pole comes down can a different one be put in it's place?
Who is responsible for the landscaping around the pole?
Must a flag be flown on it?
What flags may be flown on it?
What hours may flags be flown on it?

Look to the future not just the present.

What kind of flag you putting up? It only cost us about $500 at the most. The pole was about $280 and the flag $20. We did have to put an electrical line out but you can do that with a good solar lighting system as well. That is one expensive pole if it is costing that much money.

I respectfully disagree, and would say it is a lot of easier to make that statement when your development is not being protested and continuously on the news. I think that the primary role of the BOD is to try to ensure the ongoing peaceful enjoyment of the community, and that the secondary priority is to protect home values. That was the primary focus of the Board in this matter. Perhaps there are characteristics of our community that brought this more to a concern than would be present in other communities.

Although Tony's Association, based on what we know, had the legal authority to take the pole down or force it to be taken down, once the media became involved the potential consequences increased.

As I've said many times, there are intended and unintended consequences for every decision. With negative press occurring, an unintended consequence was happening. Negative press can swing the jury pool if the issue goes to court. Negative press can decrease sales in the development. Negative press may make the legal battle more expensive (this would be done by a political group picking the case for cause and paying all legal bills and representing the flagpole owner. Yes it normally doesn't happen but it can).

We can certainly say that from our experience and research that the law appears to be on the side of the Association. However, we don't have to suffer any known or unknown consequences of the decision. Additionally, it's likely that we don't know the whole story (as what is common knowledge to Tony may not be known to us).

I would simply say that I believe had Tony's Association fought, they likely would have won. Working a compromise may certainly raise other unknown issues. However, I defer to the decision of Tony's Board for what action is best for them.

There is nothing here that is triable by a jury. The court would issue an injunction to remove the flagpole. The owner had no right to erect the flagpole and therefore has no claim against the association for monetary damages.


That depends on how long the association lets it drag on. Had they taken immediate action this flagpole would quickly be forgotten. Screwing around guarantees that it will remain in the public eye for a longer time.


Have you ever tried to get financial and/or legal assistance from a political group? How many people can you name who have? Despite all the rhetoric, it almost never happens. No political group is going to spend its hard-earned funds on a legal fight to keep a flagpole on someone else's property.

But even if some group backed the geezer, the issues remain the same. From a legal standpoint, this is an open-and-shut case. It would be difficult to expand the case beyond what it is but should that happen, the loosing party will have a lot more expenses to pay to the association. When a judge awards attorney fees one of the things he is supposed to look at is whether it was necessary to litigate. A defendant who tries to expand a judicial proceeding into a public spectacle will pay dearly when he loses.

If the press gets it wrong, then your board needs to meet and draft a statement to correct anything published or on the air. Take that reporter to task but find someone who is reasonable and well spoken.

I have been a member of the press. If you back down now, you've already given everyone a strategy for winning any argument.