Andy McDonel, the Gadsden Flag, and the Authority (or not) of Homeowners Associations

In a January post (here), we wrote about the significant influence that homeowners' associations sometimes play in deciding what a person can and cannot do on his property.  We said that clients are as likely to object one way as the other to the rules established and enforced by their homeowner's association:

It is not uncommon to hear clients complain about their association being either too intrusive or not intrusive enough in terms of regulating their -- and their neighbors' -- rights. It can certainly be a difficult line to draw, as neighbors try to be good neighbors but also express their own preferences for what is or is not reasonable.

Now, word arises from the West of a fascinating homeowners' association struggle with a property owner who objects to the association's rule against flying certain kinds of flags.

Marc Lacey has the story in Monday's New York Times, here.

According to Lacey, homeowner Andy McDonel received a notice from his association - the Avalon Village Community Association - demanding that he stop flying the Gadsden Flag on his property.

FLAG HISTORY INTERLUDE: In case you haven't recently studied the historical flags of the United States, the Gadsden Flag (which includes an image of a coiled snake and the phrase "Don't Tread On Me") was used by certain Continental naval forces during the American Revolution. It was named for Colonel Christopher Gadsden from South Carolina. More recently, it has taken on a renewed political importance as a symbol, for some people, of the Tea Party Movement. It association with the Tea Party is, no doubt, the reason that McDonel's story has received national attention. For property law junkies, it's just a good debate-starter! 

According to Lacey, the Avalon Village Community Association has taken the position that it is within its rights to prohibit its members from flying the Gadsden Flag because that flag was not included by the Arizona legislature in a law that listed several flags that all property owners have the explicit right to display.

Avalon's argument is based on the idea that the Arizona statute, by including a particular list of flags, necessarily excludes all flags which are not listed; in other words, a homeowners association logically has the right to prohibit its members from flying the flags that are not listed in the Arizona statute, including the Gadsden Flag.  This interpretation is rooted in the legal theory of "expressio unius est exclusio alterius" (now there's some Latin to spice up your Friday!), which means that items excluded from a statute were intentionally excluded by the legislators who voted for the law.

Interestingly, the Code of Virginia includes a provision similar to Arizona's, stating that property owners have the right to display the American flag, which cannot be infringed by a homeowners association. The difference is that Virginia's statutory provision is even more limited than Arizona's, as it references only "the flag of the United States."

"No association shall prohibit any lot owner from displaying ... the flag of the United States whenever such display is in compliance with ... the United States Code." (Code of Virginia Section 55-513.1)

The Avalon Village Community Association's lawyer has made the point that Andy McDonel should have been aware of the prohibition against flying the Gadsden Flag, particularly since he was formerly an officer of the association.  On this point we can certainly agree: potential owners would be wise to spend a couple extra hours reviewing their association's bylaws and other governing documents, to be sure that they agree and are comfortable with the neighborhood's rules. And if you are an adamant flag-displayer -- be it the Gadsden, the Parrothead, the Soviet, or the Cavalier Football Flag! -- be sure you have the right to fly your flag before signing your purchase contract.