Vermont Protects the State Flag and Political Signs, Not Military Flags

The operative language is narrow and worth reading closely. Subsection 3-120(d) begins by saying a rule regulating display of the United States flag must be consistent with federal law, which leaves the federal Freedom to Display the American Flag Act to define the national flag right. Vermont then adds its own list, and that list has exactly two items: the flag of this State, and signs regarding candidates for public or association office or ballot questions. A Vermont association may therefore still ban a Marine Corps flag, a POW/MIA flag, a Gadsden flag, a thin blue line flag, a rainbow flag, or a college pennant outright, because none of them is the United States flag, the Vermont State flag, or a sign about a candidate or a ballot question.

The geography of the right matters too. The statute protects display on a unit or on a limited common element adjoining a unit. A limited common element is defined at 27A V.S.A. § 1-103 as a portion of the common elements allocated for the exclusive use of one or more but fewer than all units, which in practice means the balcony, deck, patio, or entry stoop assigned to a particular home. It does not give a member a right to plant a flag or a campaign sign out on the general common elements, on the association's lawn, or at the entrance to the development.

What the association keeps is substantial. The same sentence lets it adopt rules governing the time, place, size, number, and manner of protected displays, so a Vermont board may cap a member at one campaign sign, set a maximum square footage, require signs to come down within a set period after election day, and dictate where on a deck a flag bracket may be mounted. Those rules are not unlimited: subsection 3-120(h) states flatly that every rule must be reasonable, and 27A V.S.A. § 1-113 imposes an obligation of good faith on every party performing or enforcing a duty under the act.

Rules about flags and signs also have to be adopted through the procedure in subsections 3-120(a) and (b). Before adopting, amending, or repealing any rule, the executive board must give all unit owners notice of its intention and the text of the proposed rule or change, and must set a date on which it will act after considering owner comments. After it acts, the association must notify unit owners and provide a copy of the new or revised rule. A flag or sign restriction that a board simply announced in a newsletter, without the advance notice and comment date, was not adopted in the manner Vermont requires.

Coverage is the trap. Section 3-120 was added by 2009, No. 155 (Adj. Sess.), § 38, effective January 1, 2012, and it is not on either list in 27A V.S.A. § 1-204 of sections that reach communities created in Vermont before January 1, 1999. An older Vermont condominium or planned community is therefore outside this flag and sign protection unless it amends its declaration under 27A V.S.A. § 1-206 to take advantage of the act. Under 27A V.S.A. § 1-201(a) the title applies to all condominiums created after January 1, 1999 and to other common interest communities created after that date that contain 12 or more residential units, and under 27A V.S.A. § 1-203 a planned community with no more than 24 units and no development rights is subject only to §§ 1-105, 1-106, and 1-107 unless its declaration says the whole title applies. Read your declaration's date and unit count before assuming § 3-120 covers your neighborhood.

Separately, if the display is a solar collector or a clothesline rather than a flag, the governing law is 27 V.S.A. § 544, which voids covenants prohibiting them and applies to deed restrictions generally rather than only to post-1999 common interest communities.

An association enforces a flag or sign rule the way it enforces any other rule. § 3-102(a)(11) it may impose a reasonable fine for a violation of the declaration, bylaws, or rules, but only after notice and a hearing. If the display belongs to a tenant rather than the owner, § 3-102(d)(2) lets the association levy a reasonable fine directly against the tenant after notice to both the tenant and the unit owner and an opportunity to be heard, and § 3-102(e) gives the tenant or owner 10 days after notice to cure before the association may exercise the landlord-style remedies in § 3-102(d)(3).

§ 3-116(a). § 4-117(a), which lets a unit owner sue to enforce a right granted by the title, the declaration, or the bylaws, and lets the court award reasonable attorney fees and costs to either side. The board is not obliged to chase every violation: § 3-102(g)(2) expressly allows it to decline enforcement where the restriction being enforced is likely to be construed as inconsistent with law, though § 3-102(h) forbids it from being arbitrary or capricious in choosing whom to pursue.