A recent case in Boston has raised the issue of whether a condo owner has the right to display a national flag in their unit window.
Mark DiGiovanni, 52, asked for an exception to his building’s “white curtains only” rule but the condo board denied it. DiGiovanni proceeded to hang a U.S. flag on curtain rings in his window anyways, which resulted in receipt of a letter from the building’s management that requested compliance with the rule. The letter also noted that failure to comply would result in a daily fine. DiGiovanni asserts the fine violates the Freedom to Display the American Flag Act. However, federal law states the American flag should not be used for decoration, prohibiting it from being hung as drapes.
This begs the question: How would this case be handled in Canada or, more specifically, Ontario?
Chris Jaglowitz, a partner at Gardiner Miller Arnold LLP, says it’s common for condominium corporations to have rules that prohibit unit owners from doing anything that changes the appearance of a building’s exterior. This includes provisions restricting the display of flags.
Jaglowitz points to a well-known 2009 case in which the property manager requested that a couple remove the Canadian flag hanging in a tree outside their townhouse in a Mississauga, Ont., condo complex. The couple claimed the flag was a symbol of patriotism; the property manager pronounced it was simply enforcing the condo corporation’s rules.
Since then, the federal government passed the National Flag of Canada Act, which protects a person’s right to display the Canadian flag. But, as Jaglowitz wrote in a 2012 blog posting, the act includes some important caveats: flags must be displayed in accordance with protocol; and those in control of condominiums are only “encouraged” to allow flags to be displayed – not required.
As such, a corporation can still prohibit the display of flags. However, condo boards have broad discretion when it comes to enforcing the rules, says Jaglowitz.
“The purpose of rules is to promote the safety, security and welfare of owners and occupants, and to prevent unreasonable interference with people enjoying the common elements and units,” he notes.
While, in certain cases, it may make sense for a board to grant an exception to a rule, it is also required to apply the rules evenly, says Jaglowitz. This means the board can’t exempt one owner and not another from a rule if it intends to keep the rule on the books.
When a board has no choice but to enforce a rule, Jaglowitz says unit owners typically comply quickly after the property manager explains the violation. While condo corporations in Ontario can’t fine for rule infractions (unlike their U.S. counterparts), they can charge any costs of enforcement back to the unit owner.
Michelle Ervin is the editor of CondoBusiness.
