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Betsy Ross flag not protected under condominium act

Q. An owner in our condominium building has placed two flags in his windows. One is the traditional stars and stripes (13 Stripes, 50 stars). The other is the Betsy Ross Colonial flag with 13 stripes and 13 stars. I seem to recall that the association can prohibit one but not the other. Can you clarify.

A. Section 18.6 of the Condominium Property Act governs this issue. That section essentially provides that notwithstanding any provision in the association’s declaration, bylaws, rules or regulations, a board may not prohibit the display of the American flag or a military flag, or both, 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 a unit owner is located. “American flag” means the flag of the United States (as defined in Section 1 of Chapter 1 of Title 4 of the United States Code and the Executive Orders entered in connection with that Section) made of fabric, cloth or paper displayed from a staff or flagpole or in a window.”

Therefore, the board can’t prohibit display of the American Flag (13 Stripes, 50 stars) in an owner’s window under Section 18.6 of the Condominium Property Act. However, the “Betsy Ross” Colonial Flag is not the American Flag under Section 1 of Chapter 1 of Title 4 of the United States Code and, if the association’s governing documents support it, could be prohibited from being displayed in the unit window.

Q. I live in a small self-managed common-interest community association. The units are townhouse style. The association’s declaration of covenants provides that the association is responsible for a variety of repair work on the exterior of each townhouse unit. Nonetheless, the board is allowing a unit owner to have this work done through the owner’s own selected contractor, without any vetting, oversight or specifications by the board. The association will then reimburse the unit owner for the cost of this work. Should the board allow this practice to continue? If not, can you provide some reasons why not?

A. This practice should not continue. Initially, the board of the association has an obligation to follow the declaration, and to perform work for which it is responsible. The board’s practice is arguably a breach of its fiduciary duty to all the owners and to the association.

Importantly, the board loses control of the quality of the work and materials by allowing the owner to perform this work in this manner.

Q. The board of our association adopted a rule that is intended to impose a restriction on the number of persons that can occupy a unit. It states “A Unit may not be occupied by more than five (5) people, consisting of no more than two (2) adults unless such adults are related. An adult shall be defined as a person 18 years or older.” Is this permitted?

A. Initially, I don’t know how many bedrooms are in each unit, and that may impact a response.

That said, the Fair Housing Act Amendments of 1988 prohibit discrimination based on familial status. The Fair Housing Act does contain an exception whereby reasonable occupancy restrictions of a municipality are excluded from the provisions of the Fair Housing Act. However, there is no similar language concerning private covenants. There has been significant case law under the Fair Housing Act. It has been held that the Fair Housing Act Amendments do apply to condominium associations, and that occupancy limitations may constitute unlawful discrimination under the Fair Housing Act.

Nonetheless, courts in other jurisdictions have upheld occupancy restrictions in the private arena that limit occupancy of each bedroom to no more than two persons. One case permits reasonable occupancy limitations imposed by a landlord if there is a “compelling business justification for a policy which limits occupancy.” This case is from another jurisdiction and while instructive, is not binding in this federal circuit.

Any restriction on occupancy should recite the “business justification” for the restriction.

Another issue created by this restriction is whether it could be created by a rule, or whether it required an amendment to the declaration. That’s to be addressed another day.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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