This past week, a high-ranked soldier was ordered to take down the Canadian flag and pole affixed to his condo unit. Naturally, social media lit up over this, mostly with reactions of shock at such an unpatriotic demand – condo boards and managers are rarely seen as the good guys.
Emotions aside, this leave us with a simple question: can a condo owner fly the maple leaf at his condo?
This kind of story is not that unusual. It surfaces regularly, pretty much across the country:
- In 2009, a Mississauga couple was forced to retreat and moved their flag into their unit;
- In 2010, a condo corporation in Guelph raised a red flag and demanded that the white and red one be removed;
- In 2013, in Edmonton, Derek Fildberandt (the leader of the Freedom Conservative Party of Alberta) promised to fight for his right to fly the flag;
- In 2018, condo owners in Barrie had to wave a white flag and removed the maple leafed one;
And now, in Ottawa, Major Michael Mitchell is told that he has to take down the flag and the pole he affixed to the garage, outside of his townhome.
These stories have many points in common. They almost always start with the flag being initially raised just before Canada Day. Around that time, each year, patriotism is at its peak and everyone is happy to see the flags go up. In most cases, condo corps turn a blind eye and allow the red and white wave to take over the complex for a few days. But it is a different story to leave your flag up past our national celebrations.
Another commonality is that most neighbours, if surveyed, are in favour of the Canadian flag floating in their complex. Yet, most of these compliance cases are triggered by a neighbour’s complaint.
The community is suddenly divided between the flag-waving owners and those who are in favour of “peace order and good government”. If we are going to allow the Canadian flag, what else will we allow? What other rule should we ignore.
Another common argument is the desire to maintain the uniformity of the condo complex. The answer to that could be to erect a flag on every garage in the complex, no?
Don’t think I picked sides here. Keep in mind that this condo lawyer has served 18 years with the Canadian Forces. I’m all for Queen, flag and country. But this situation has nothing to do with the flag. It’s all about what the flag is attached to.
What is the law of the land?
Many of the disputes between condo corporations and owners stem from a misunderstanding of who owns what.
A condo owner has the exclusive use and ownership of their unit, within which they have a great level of freedom. But immediately outside of the unit are “common elements”. In this case, the Major’s garage and cladding. Sometimes even the driveway and the yard (I understand the present case involves townhomes). Individual owners do not own the common elements. All owners have a common and undivided interests in the common elements. To plant your flag on common elements is like planting your flag on your neighbours’ property.
For this reason, amongst others, most corporations have specific rules preventing owners from modifying common elements. Specifically, these rules often have language preventing owners from “erecting or attaching anything to common elements” or from “harming, mutilating, destroying, altering or littering the common elements”. (Don’t shoot the messenger. I’m just quoting rules here).
But in addition to these condo-specific rules, the Condo Act itself provides that owners are not to modify common elements without having first obtained the corporation’s blessing and without entering into what is referred to as a “section-98 agreement”. Such an agreement clarifies the rights and obligations of the owner having modified the common elements and the corporation. Who will pay for it; who will insure it; who will reinstate the common elements to their original state when/if required.
The National Flag of Canada Act
In 2012, Conservative MP John Carmichael tabled the National Flag of Canada Act, a private member’s bill. Initially, the bill was to prohibit anyone from preventing someone else to fly the flag. Basically, a prohibition against prohibition. But the final version of the bill ended up (thankfully) significantly watered down. All it provides for now is:
Every person who is in control of an apartment building, a condominium building or building in divided co-ownership or another multiple-residence building or a gated community is encouraged to allow the National Flag of Canada to be displayed in accordance with flag protocol.
This means that, while condo corporations are encouraged to allow the display of the Canadian flag, they can continue to regulate whether they will allow it or not on common elements.
There are a few easy solutions. One of them is to move the flag elsewhere. It appears from our reading of the story that the Major would be authorized to erect a pole on the yard. Certainly, that was the case in a few of the stories listed above.
An alternative solution is to enter into a section-98 agreement. These agreements need not be complicated. All that they need to provide is an allocation of responsibility and cost with respect to the modification. Most importantly in this case, I would expect the condo owner to undertake to remediate and repair the garage cladding once/when the flag is removed. Having stated that, a section 98 agreement must be registered on title.
The risk with these solutions, if there is one, is that the corporation must be prepared to consider the application of every other owner who wishes to put up a Canadian flag. It must also be prepared to have a response to those who wish to put up a different flag and it must consider what it will do if someone does not maintain its flag in adequate conditions. Let’s not forget that the National Flag of Canada Act requires that the flag be displayed in accordance with flag protocol. I, myself, prefer no flag to a raggedy one.
You think this condo is being too inflexible? Have a look at this one where a Florida veteran is reported to have lost his home over the small flag he planted in a flower box.