Arkansas Voids HOA Covenants That Ban the US Flag

Arkansas has no homeowners' association act, so the flag law stands almost alone as a statutory limit on what an Arkansas association may put in its covenants. Section 3 of Act 1106 of 2003 says no person, homeowner's association, property owner's association or other private entity shall adopt any rule, regulation or policy, or enter into any agreement or protective covenant, that prevents a person who would otherwise have the legal right to properly display a flag of the United States on private property from exercising that right. A covenant already recorded is caught by the same words, because the act reaches an agreement or protective covenant and not merely a rule adopted after 2003.

The act defines what it protects tightly. A flag of the United States means the flag made of fabric, cloth or paper suitable for display from a pole, staff, or in a window, with dimensions not larger than ten feet in length or eight feet in width. It expressly does not mean a depiction or emblem of the flag made in lights, paint, roofing, siding, paving materials, flora, balloons, or any other similar building, landscaping or decorative component. A flag painted on a garage door, spelled out in bedding plants or picked out in roof shingles is outside the statute, and an Arkansas association may prohibit those under its architectural covenants without touching the act.

The act also protects a right you already have rather than creating a new one. Legal right is defined as the freedom of use and enjoyment generally exercised by the owners and occupiers of land, and Section 3 protects a person who would otherwise have the legal right to display the flag. That phrasing matters at the edges. The statute does not give a condominium owner a right to bolt a bracket to a shared exterior wall that is common property, and it says nothing at all about pole height, the number of flags, setbacks from a lot line, or night illumination. An Arkansas association can still regulate those subjects, and many do, so long as the rule does not operate to prevent display.

Two classes are carved out of the private-entity rule entirely. Section 3(b)(2) exempts landlords of private rental property who operate fewer than twelve rental units, and property owned by churches or religious organizations. A tenant in a small Arkansas rental house or duplex therefore has no statutory flag right against the landlord, while a tenant of an operator with twelve or more units does. The other exception is commercial: display may be restricted if the flag is used as, or in conjunction with, an advertising display, which is aimed at car lots and similar promotional flag use rather than at residents.

Section 2 handles local government separately and is worded more strictly than most people expect. A local government, defined as a county, a city of the first class or second class, an incorporated town, any other district or political subdivision, or any board, commission or agency of those subdivisions, shall not adopt any ordinance, regulation or policy that prohibits or restricts a resident from properly displaying a flag of the United States on the resident's person, property or motor vehicle, unless the flag is used as or with an advertising display. A city may impose reasonable restrictions as to time, place and manner only when necessary for the preservation of the public's health and safety or the public order, and Section 2(c) forbids imposing any such restriction solely to promote aesthetic considerations. A sign ordinance that swept in flags on appearance grounds would fail that test.

There is no Arkansas agency that polices association covenants, so enforcement runs through the circuit court in the county where the property sits. The remedy is that the offending rule, policy or covenant cannot be enforced against you, and the act adds a fee-shifting provision that changes the economics of the fight: Section 4 says a prevailing party in an action to enforce the legal right to fly a flag of the United States shall be entitled to recover the court costs and reasonable attorneys' fees incurred.

That runs both ways, so an owner who flies an oversized flag, a painted flag on siding, or a flag used with advertising, none of which the act protects, can be ordered to pay the association's fees. Before filing, put the demand in writing, quote Act 1106 of 2003, and state the measured dimensions of the flag and that it is fabric, cloth or paper on a pole, staff or in a window, because those are the facts that decide whether the statute applies at all.

Where the offender is a city or county rather than an association, the same fee provision applies to an action to enforce the right, and a resident challenging an ordinance should point to Section 2(c), which removes aesthetics as a lawful justification.