Texas Appellate Court decision (January 27, 2015).
In this case, a homeowners association sued a homeowner/member of the association for damages and injunctive relief for flying the American flag in violation of the HOA’s guidelines. Thehomeowner flies the flag on a flagpole that is attached to a beam that extends a few inches beyond the porch into the front yard of his property. The beam is anchored to the porch at the other end by a wooden bench that is weighted down with cinder block. Thus, neither the beam or the flagpole actually touches the ground in front of the homeowner’s porch. The homeowner contended that the HOA was prevented from pursuing the action under the federal Freedom to Display the American Flag Act, as well as the Texas state law.
The Flag Act prohibits a condominium association and/or a management association from restricting or preventing a member from displaying the flag of the United States “on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.”
In support of his position, the homeowner argued that the manner in which he displayed the flag was such that it was suspended above the common area (front yard) and anchored to an area that was either his separate interest or an area in which he had a right to exclusive possession or use. The HOA contended that the manner in which the flag was displayed did not meet the “separate ownership interest or a right to exclusive possession or use” requirement, and that the flagpole was a safety hazard.
The homeowner moved for and was granted summary judgment in the trial court but the court did not specify whether the judgment was based on the Flag Act or Texas law. In opposition to the homeowner’s motion for summary judgment, the HOA failed to challenge the homeowner’s argument under the Flag Act.The HOA appealed the granting of summary judgment in the trial court, but the appellate court affirmed the trial court’s judgment because the HOA failed to challenge the homeowner’s argument under the Flag Act.Notwithstanding said procedural basis for sustaining the trial court judgment, the appellate court commented that the preamble to the Flag Act specifically states that the intend of the Flag Act is “To ensure that the right of an individual to display the flag of the United States of America on residential property not be abridged.”The court further noted that it was undisputed that the homeowner’s front porch was residential property in which he had a separate ownership interest or a right to exclusive possession or use– thereby implying a violation of the Flag Act.The court also stated that HOA’s efforts “also”violate TEX. PROP. CODE 202.011…”
See cases decision: Forrest_Lake_Townhouse_Ass’n