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posted: 9/1/2012 5:18 AM

Condo rules shouldn't prohibit American and military flags

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Q. I am a veteran who proudly displays a small American flag on short pole in the ground of the limited common element patio area outside of my townhouse unit. The board of the association has asked me to remove the flag, stating it violates the covenants for our property. I have read the covenants, and the board is correct. Is there any law that would permit me to display an American flag anyway?

A. Yes there is. A board may not prohibit the display of the American flag or of a military flag, or both, or the installation of a flagpole, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of an owner is located. This applies regardless of any provision in the declaration, bylaws, rules, regulations or agreements or other instruments of a condominium association or a master association or a common interest community association.

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That said, a board may adopt reasonable rules and regulations, consistent with the United States Code, regarding the placement and manner of display of the American flag, and of a military flag, and regarding the location and size of flagpoles.

"American flag" is defined as the flag of the United States made of fabric, cloth or paper displayed from a staff or flagpole or in a window. Similarly, "military flag" means a flag of any branch of the United States armed forces or the Illinois National Guard made of fabric, cloth or paper displayed from a staff or flagpole or in a window.

An American or a military flag as so defined does not include a depiction or emblem of the flag made of lights, paint, roofing, siding, paving materials, flora, balloons or any other similar building, landscaping or decorative component.

So, while the board cannot prohibit the display of the American flag on a pole on the limited common element of your unit, it can (within reason) regulate the placement and manner of the display, and the location and size of the flagpole.

Q. An amendment to the declaration for our condominium association has been prepared, and a question has come up about the number of owners that must approve the amendment. The declaration says that the amendment must be approved by 67 percent of the owners at a meeting. Does this mean the amendment must be approved by 67 percent of all of the owners in the association, or approved by just 67 percent of the owners who are present at the meeting?

A. The declaration for your association, consistent with most declarations and the Condominium Property Act, provides the answer in the definition section. Under the definition of "majority," the declaration states, as is typical, that any specified percentage of the unit owners means such percentage in the aggregate in interest of such undivided ownership. This means the amendment must be approved by 67 percent of all of the owners in the association. Note also that this means that approval is based on percentage of ownership in the common elements, not simply by the number of units in the association. So, the amendment here must be approved by owners having 67 percent of the total percentage of ownership in the common elements in the association. It's not supposed to be easy to amend the declaration of an association, but it is often accomplished.

Reminder: As of Oct. 1, community association managers in Illinois must be licensed under the Community Association Manager Licensing And Disciplinary Act. "Community association manager" means an individual who administers for remuneration the financial, administrative, maintenance or other duties for the community association, including the following services: collecting, controlling or disbursing funds of the community association or having the authority to do so; preparing budgets or other financial documents for the community association; assisting in the conduct of community association meetings; maintaining association records; and administrating association contracts, as stated in the declaration, bylaws, proprietary lease, declaration of covenants, or other governing document of the community association. "Community association manager" does not mean support staff, including, but not limited to, bookkeepers, administrative assistants, secretaries, property inspectors and customer service representatives.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium associations. This column is not a substitute for consultation with legal counsel.

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