Displaying Flag in Complex Prompts Fines

Question: I live in a condominium in Brentwood that consists of 15 units. After the events of Sept. 11, I hung an American flag out of my window. My association board of directors told me to take it down.

Now I’ve been fined $45. What can they do to me if I refuse to remove my flag?

Q: We live in a common interest development in Los Angeles. My husband, a World War II vet, took out his 50-year-old flag and covered our front window with it. The board asked us to remove it and gave us 24 hours to do so. My husband refused.

Every day since, the board has put a new fine in our mailbox demanding payment and adding interest, and as of this writing we were up to $60 in fines.

The board has paid an attorney to tell us the homeowners are going to sue if we don’t cease and desist, and they sent the attorney’s bill to us to pay. We are on a fixed income and my husband refuses to yield. What can we do about this?

Q: When the terrorists struck out at the World Trade Center I immediately put my American flag out on my balcony. Within an hour, the board put a notice in my mailbox fining me $70 for flying my flag on a day that was not a “recognized American holiday” and for not obtaining prior written permission from the board.

Three days later, my flag still visible, I received another notice telling me to remove my flag and increasing the fine to $75 plus interest.

Today the board paid a lawyer to write me a letter ordering me to take my flag down and sending me a bill for the costs the association has incurred to fine me, including his fees.

Is this legal? Can they throw me in jail? Will I have to pay those fees and the lawyer, too?

Answer: In the language of common interest developments, your American flag is a “lawn ornament,” or if in your window it is a “political symbol.”

The rationale in not allowing you to fly the flag is that if you do it everyone will want to do it, and that hypothetically reduces the value of everyone’s home, which your boards believe they were elected to preserve.

Under the Davis-Stirling Act, if your board says you cannot fly the flag, the law supports them.

Challenges to flag flying are not new. Nearly a decade ago, a Marina del Rey condominium owner was challenged by his association and finally sued over flying the American flag in his exclusive-use common area. After spending his life savings defending himself, the homeowner lost the battle and his home, and the flag came down.

Just this week, Gov. Jeb Bush of Florida, in response to e-mails about flag restrictions, asked associations there to suspend rules prohibiting the display of the American flag.

In Arizona, three state legislators asked associations to suspend their rules to enable everyone to “proudly display their flag and show the world that no insane act of terrorism will defeat our spirit.”

As unfair as it seems, if your board wants you to take down the flag, you have to take it down or risk the consequences. No, you cannot go to jail, but the fear is understandable given the board’s power and financial ability to follow through.

Condo Costs Suddenly Jump After Escrow Opens

Q: The escrow on the condominiums I am buying is supposed to close Sept. 30. Today the condo owners are voting on a proposed $4,450 assessment against each unit owner, and they will also raise the monthly fees.

My real estate agent sprang this on me the day after we entered escrow. I feel duped by the real estate agent and believe her only goal was to open escrow at any cost.

I have no idea why the assessment is necessary, and the association refuses to allow me to look at bank records and documents so I can determine for myself the health of this association.

My real estate agent has not been helpful. She told me not to push it and said she doesn’t want to get involved with the association because that’s not her job.

The agent told me the assessment usually goes with the property and that I will have to pay it or they can put a lien on my unit. I don’t think it is right because I paid full price for the condo and barely scraped up enough money for the down payment and closing costs, and now I am supposed to pay $4,450 more. What I thought was affordable isn’t.

I don’t like this and I can’t afford higher monthly fees. Can I do anything about this?

A: Section 1368 of the Davis-Stirling Act provides that, as soon as practicable before the transfer of title, the seller of your condominium must provide you with documents, including a statement about any “change in the association’s current regular and special assessments and fees which have been approved by the association’s board of directors, but have not become due and payable as of the date disclosure is provided.”

If you have already been provided with those documents, you may not have any recourse, although notice of the intention to vote on a special assessment would have been given to the seller.

If the seller has not provided these documents, your only recourse under the law is to sue for damages. The amount of damages in your case, $4,450 and the additional $500 penalty to which you are entitled under the law, is below the Small Claims Court $5,000 limit, allowing you to file and obtain a quicker resolution than in Superior Court.

If you have been given the documents, look for any paperwork that indicates the special assessment was coming. If this information was withheld from you, you may still have a cause of action against the seller or maybe the association board on that basis.

Whether it is up to your agent to obtain those documents should be discussed with the state Real Estate Licensing Board. The real estate agent is correct in that the assessment does become a lien on the property, but it sounds like the agent is more interested in closing the sale than in resolving issues that could result in the sale’s falling out of escrow or a lawsuit.

Suggest to the agent that the amount of the special assessment be withheld from the sale proceeds until it can be determined whether you have been provided with all the information necessary to complete the sale. Because this assessment materially changes the terms of your purchase, you may also be able to cancel the sale, but be cautious, as you may forfeit your deposit and be subject to suit by the seller.

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Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian is a writer and arbitrator and manages commercial property. Both live in common interest developments and have served on various association boards. Please send questions to Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to CIDCommonSense@aol.com.