New Hampshire Protects the U.S. Flag and No Other

The condominium provision is RSA 356-B:47-a, added by 2011, 127:2 and effective June 6, 2011. It opens by invoking the federal Freedom to Display the American Flag Act of 2005, Public Law 109-243, and then states that "notwithstanding any provision in the condominium instruments to the contrary, the unit owners' association shall not prohibit the outdoor display of the United States flag." The word notwithstanding matters: a declaration or bylaw recorded decades ago that forbids all exterior attachments cannot be enforced against a U.S. flag. RSA 356-B:6-a, I reinforces this by providing that in the event of a conflict between the declaration or bylaws and RSA 356-B, the statute controls, and RSA 356-B:6-a, II lets an association amend its documents to conform to RSA 356-B without obtaining mortgagee approval where the change does not affect the mortgagee's equity or security interest.

The display must be "in a manner consistent with the United States flag code and RSA 3-E." RSA 3-E:2, I adopts the federal flag code at 4 U.S.C. sections 1 through 10 as New Hampshire's own flag code. RSA 3-E:2, II adds two half-staff duties beyond federal law: the governor must order the flag flown at half staff on the day of and the day after the burial of any member of the armed forces who dies in combat and who is a New Hampshire resident, and must issue a standing order that a military reservation in New Hampshire fly the flag at half staff while a fallen service member is on it.

New Hampshire also settled the argument condominium boards used most often, which is that a flag on a bracket intrudes into common area. RSA 356-B:47-a resolves it in the owner's favor: when a flag is flown from a bracket on the unit owner's balcony or deck, the flag may extend over the vertical line of the outboard deck line and into the common area. The association keeps only the authority to "adopt reasonable rules regarding the size of the flag and the manner in which the flag is displayed." That is narrower than it sounds. A rule capping a flag at 3 feet by 5 feet, requiring a bracket rather than a freestanding pole, or requiring illumination for night display is a manner rule. A rule that permits display only on Memorial Day, Flag Day, Veterans Day, and Independence Day is a prohibition dressed as a manner rule and collides with the statute.

Coverage has two gaps worth knowing. First, RSA 356-B:47-a sits in subdivision III of the Condominium Act, and RSA 356-B:2, I provides that the chapter does not reach real estate submitted to RSA 479-A, the New Hampshire Unit Ownership of Real Property Act, before September 10, 1977, except for subdivisions I and IV. An owner in one of those pre-1977 unit-ownership projects relies on RSA 3-E:3 rather than on the Condominium Act. Second, New Hampshire has no general planned-community or homeowners association statute at all, so a detached-home association organized only under its declaration is outside RSA 356-B entirely. RSA 3-E:3 covers both situations: "No rule, ordinance, or agreement of any kind by a person, municipality, or other entity shall prohibit the flying of the United States flag from a private residence owned, rented, or used by a private person." That section also protects tenants, since it reaches a residence "rented, or used by" the person flying the flag, so a New Hampshire landlord's lease clause banning flags is unenforceable too.

Enforcement runs through the courts, not a state agency. There is no New Hampshire board or ombudsman with power to order a condominium association to take down a flag rule. Under RSA 356-B:15, I a lack of compliance with the chapter or the condominium instruments is grounds for an action or suit for damages, injunctive relief, or any other remedy at law or in equity, brought by the association, its board, its managing agent, or by one or more aggrieved unit owners on their own behalf or as a class action.

RSA 356-B:15, II then provides that the prevailing party is entitled to all costs and attorneys' fees incurred in the proceeding. flag, loses, and pays the owner's legal bill out of common funds has to explain that at the next annual meeting. An owner who ignores a legitimate size or manner rule can be the one paying. RSA 3-E:3 carries no penalty clause of its own, so a homeowner outside a condominium enforces it as a defense to the association's collection action or by suing for a declaratory judgment and an injunction in superior court.