AUTHORITARIAN BOARDS, PUBLIC RANCOR, P.2

"Hallway space belongs to the co-op generally, including the front door," says a veteran real estate attorney not involved with the case. "In a co-op you don't own; you have possessory-use right for inside the apartment. In a condo, you have ownership rights, but in virtually all cases you do not own the front door. You have exclusive control of the inside of the front door, but, for example, you can't eliminate the peephole or replace the front door with a non-fire-rated door."

Thus, says the co-op’s attorney, Goodman, the federal law "doesn't apply. It only applies to separate ownership interest, which is not the front door. The language is clear in that it doesn't apply to common areas or public areas."

But should the board have made a federal case out of it, so to speak? "[I]t suggests the board is unpatriotic or un-American or perhaps just heavy-handed," says attorney Steven R. Wagner, of Wagner Davis. Supreme Court-bar attorney Robert J. Shanahan, Jr., of Kilcommons Shanahan in Annandale, N.J., who has worked on U.S. flag-related cases, calls it "a political issue. Strictly legally, the board has the right to make the rules, and that would cover an American flag. But if the American flag isn't damaging any common areas, you are best to compromise in these situations. Don't do form-over-substance decisions."

Goodman claims it is a matter of precedent and principle. "If you allow one person to put up an object that is legitimately important to that person, what do you say to the next person who wants to put something that's important to that person?"

This gets into complex Constitutional questions. Can a board forbid an observant Jew from placing a mezuzah outside one's door, or is that impermissible squelching of religious freedom? If an argument can be made that banning a mezuzah is unconstitutional on freedom-of-religion grounds, then what about freedom of speech?

Don't do form-over-

substance decisions.

"A board can decide to not enforce a rule," notes attorney Joseph G. Colbert, a partner at Kagan Lubic Lepper Lewis Gold & Colbert, and an adjunct professor at St. John's University School of Law. "If it's just something the board passed and not a bylaw amendment, then the board, like any political body, can interpret when these rules can be enforced, subject of the approval or disapproval of the residents." While the door flag is "part of the common element," he says, "and the board would be within its rights to call that a decoration, I wouldn't." The same holds true, he suggests, "if somebody, say, puts a yellow ribbon there if they have a kid overseas."

The Community Associations Institute, a national organization of homeowners' associations, "strongly believes that all Americans should have the opportunity to display the U.S. flag to demonstrate their patriotism and support of our country," its spokesperson, Frank Rathbun, told The New York Times .

With novelistic irony, the flag is a symbol of democracy – majority rule, minority rights. Willoughby Walk, which had a graphic-design firm create a glossy, four-color, perfect-bound, 72-page annual magazine, obviously cares about its image. But anyone thinking of buying an apartment there can do a Web search that calls up national news items and videos that give the impression — accurate or not — of a rigid, seemingly unpatriotic regime. "This board has obviously nothing better to do with its time," says yet another veteran attorney.

Nuanced discretion is harder and requires more judgment and wisdom than laying down blanket rules and insisting they be followed in all cases, all the time, without exception. And this particular board, weeks after the unexpected media flurry, did find a creative solution. "The board decided to grandfather anything that's been on a door longer than five years," Susco says.

While this sidesteps the issue of future flags, mezuzahs, yellow ribbons and the like, it also gives the board time, if it chooses, to refine its rule in light of real-world practicalities. Lawmaking is often a matter of trial and error, as even professional legislators find. And in the end, even if one is technically correct, trial and error is always better than either figurative or literal trials.

Illustration by Liza Donnelly

Adapted, with Web-exclusive material, from Habitat October 2008. For the print version and more, join our Archive >>