Section 1 — Overview: Flag display rules for South Dakota HOAs

Begin with what South Dakota has actually done. Unlike most states, South Dakota has passed a flag-display statute that reaches directly into community associations: SDCL §§ 11-5-7 and 11-5-8, enacted in 2021, override private covenants, restrictions, bylaws, and rules to guarantee a homeowner the right to display one portable United States flag, plus one additional flag of the homeowner's choosing — the South Dakota state flag, a flag representing a branch of the U.S. military, or a POW/MIA flag — and a flagpole to fly them from.¹⁴

Federal law adds a second, narrower layer on top of that state right. The Freedom to Display the American Flag Act of 2005 separately protects the United States flag, and the recorded covenants, conditions, and restrictions, the CC&Rs, govern every flag and every condition that reaches beyond those two floors — decorative, message, sports, first-responder, and foreign flags among them.¹ Under the federal act, codified as a statutory note to 4 U.S.C. § 5, a covered association may not adopt or enforce any policy that restricts a member from flying the U.S. flag, and it may impose only a reasonable time, place, and manner restriction that protects a substantial interest — and the act grants no private right of action.^1,2

The framework around those two floors stays light otherwise. Condominiums answer to the South Dakota condominium statute, SDCL Chapter 43-15A. Planned communities and other non-condominium associations have no stand-alone HOA act; they run on their recorded CC&Rs plus the South Dakota Nonprofit Corporation Act (SDCL Chapters 47-22 to 47-28). And South Dakota is not a Uniform Common Interest Ownership Act (UCIOA) state.^3,4,5

Condominiums do face real state oversight — a developer must register and file a public offering statement with the South Dakota Real Estate Commission — but that oversight covers how a condominium is created and disclosed, not how anyone flies a flag.⁶ When a dispute reaches court, the circuit court hears it, and any appeal runs straight to the South Dakota Supreme Court, because the state keeps no intermediate appellate court.⁷ The sections that follow lay out the state statute, the federal floor, the controlling role of the CC&Rs, and the practical rules for associations.

Quick-Reference Table

Section 2 — The legal framework

2A. The federal floor: Freedom to Display the American Flag Act of 2005

One flag-specific protection reaches into South Dakota, and it comes from Washington. Congress passed the Freedom to Display the American Flag Act of 2005 as Public Law 109-243, and the President signed it on July 24, 2006; it now sits as a statutory note to 4 U.S.C. § 5.¹ Section 3 of the act tells a condominium association, a cooperative association, or a residential real estate management association that it may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member from displaying the flag of the United States on residential property the member owns outright or holds a right to possess or use exclusively.¹

The act reaches those three association types by name, and it protects the flag on the member's own unit or exclusive-use area — not on the common elements the association controls. Section 4 keeps two limits in place: the display must square with chapter 1 of title 4, the Federal Flag Code (4 U.S.C. §§ 1-10), and the association may impose any reasonable restriction on the time, place, or manner of display that protects a substantial interest.¹

The reach stays narrow. The act covers the United States flag and nothing else — not the South Dakota state flag, and not military, POW/MIA, first-responder, service, decorative, or message flags. It also carries no enforcement mechanism and no express private right of action.

A federal court said so plainly in Murphree v. Tides Condominium at Sweetwater by Del Webb Master Homeowners' Ass'n, No. 3:13-cv-713-J-34MCR (M.D. Fla. Apr. 1, 2014), holding that the act "does not provide any enforcement mechanism, or explicitly create a private right of action for individuals such as Murphree to bring a lawsuit against a condominium association."² The Federal Flag Code itself only advises — it speaks in terms of "should" and "custom" and sets no penalties.⁸

2B. South Dakota's flag-display statute: SDCL §§ 11-5-7 and 11-5-8

South Dakota enacted a flag-display statute for community associations in 2021, and on its face it is more protective than most states' laws. SDCL § 11-5-7 provides that "[a]ny homeowner, regardless of any private covenants, restrictions, bylaws, rules, or requirements[,] may display one portable, removable official United States flag, not larger than four and one-half feet by six feet[,] and may additionally display the official South Dakota State flag or one portable, removable official flag . . . that represents the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, or a POW MIA flag," with the additional flag sized no larger than the U.S. flag displayed.¹⁴ SDCL § 11-5-8, its companion section, protects a homeowner's right to install a flagpole for that display, regardless of private covenants.¹⁴ Both sections sit in Title 11, Chapter 5, "Restrictive Contracts and Declarations" — the same chapter that houses South Dakota's covenant-duration cap and its 2024 firearms carve-out, and one built specifically to override private governing documents on a short, named list of subjects.¹⁴

The statute reaches further than the federal act in one respect and stops short of it in another. It reaches further because it protects the South Dakota state flag, a military-branch flag, or a POW/MIA flag, none of which the federal act touches. It stops short because it authorizes only one additional flag alongside the U.S. flag — a homeowner cannot fly the state flag and a military flag at the same time under § 11-5-7, though a particular declaration might permit more. Other states took a comparable road: Alabama protects the U.S. flag by statute (Ala. Code § 35-1-5); South Carolina protects the U.S. and state flags (S.C. Code § 27-1-60); Florida spells out a longer enumerated list (Fla. Stat. § 720.304).^9,10 South Dakota's approach — one U.S. flag plus a choice of one additional flag — places it among the two-flag states rather than the single-flag or broad-enumerated-list states.

Outside SDCL §§ 11-5-7 and 11-5-8, the community-association framework holds no other flag provision. SDCL Chapter 43-15A governs condominiums as a traditional horizontal-property statute — it addresses how vertical and horizontal property regimes are created and validated, a lien for the erection, repair, or improvement of a single development (SDCL 43-15A-29), and rulemaking by the Real Estate Commission to administer and enforce the chapter (SDCL 43-15A-30, the chapter's final section) — and it says nothing about flags itself.³ Planned communities and other non-condominium associations get no stand-alone HOA act at all; they operate on their recorded CC&Rs, on SDCL §§ 11-5-7 and 11-5-8 to the extent those sections reach, and, where they incorporate as a nonprofit, the South Dakota Nonprofit Corporation Act (SDCL Title 47, Chapters 47-22 to 47-28).⁴ South Dakota is not a UCIOA state.⁵

One feature does set condominiums apart: a condominium developer must register with the South Dakota Real Estate Commission and deliver a public report — the Commission's forms call it a public offering statement — before a sale contract binds a purchaser, and the Commission administers the Condominium Act alongside the Real Estate Licensing Act and the Timeshare and Subdivision Acts, with rules at ARSD Article 20:69.⁶ That oversight covers how a condominium is created and disclosed, not how a member flies a flag, and the Commission does not decide flag disputes. The result: the state statute protects the U.S. flag plus one additional flag regardless of covenants, the federal floor separately protects the U.S. flag, and the recorded CC&Rs govern every other flag and every condition beyond those two floors.

2C. The CC&Rs, precedence, and enforcement

SDCL §§ 11-5-7 and 11-5-8 control the U.S. flag, the homeowner's one additional flag, and the flagpole to display them from, regardless of what the recorded declaration or CC&Rs say. The recorded declaration and CC&Rs control every other flag question: first-responder and service flags, decorative and message flags, and the rules on size, number, location, lighting, flagpoles, and prior approval for anything beyond what the state statute reaches. The CC&Rs also reach the U.S. flag as far as the federal act allows on top of the state statute — a reasonable time, place, and manner restriction that protects a substantial interest, but never an outright ban.¹⁴ Precedence runs in a clear order: SDCL §§ 11-5-7 and 11-5-8 come first for the U.S. flag, the homeowner's one additional flag, and the flagpole; the federal act layers on top for the U.S. flag specifically; then the recorded declaration or CC&Rs together with the applicable statute (the condominium statute for a condominium, the Nonprofit Corporation Act for an incorporated non-condominium association) govern everything else; then the bylaws; then the board's own rules.⁴

On enforcement, South Dakota keeps no dedicated HOA regulator to decide disputes. The Real Estate Commission oversees how condominiums are created and registered, but it does not resolve flag or covenant fights, so enforcement runs through the courts first.⁶

A party files in the circuit court, the state's trial court of general jurisdiction, and an appeal goes straight to the South Dakota Supreme Court, because the state keeps no intermediate appellate court — a structure it shares with Delaware, Maine, Montana, New Hampshire, Rhode Island, Vermont, and Wyoming.⁷ In day-to-day terms, a property manager applies SDCL §§ 11-5-7 and 11-5-8 to the U.S. flag, the homeowner's one additional flag, and the flagpole, applies the federal floor on top for the U.S. flag, reads the CC&Rs for every other flag and every condition, follows the Nonprofit Corporation Act formalities (or, for a condominium, the condominium statute and the Real Estate Commission's registration requirements), and litigates in the circuit court with appeal directly to the South Dakota Supreme Court.

Section 3 — What a South Dakota association can and cannot do

A. Flags the association must permit

A South Dakota association must permit two flags from every homeowner, and that command comes from state law before federal law ever enters the picture. Under SDCL § 11-5-7, an association may not bar a member, regardless of any private covenant, restriction, bylaw, rule, or requirement, from displaying one portable U.S. flag and one additional flag of the homeowner's choosing — the South Dakota state flag, a flag of an eligible military branch, or a POW/MIA flag.¹⁴ SDCL § 11-5-8 separately guarantees the flagpole to fly them from.¹⁴ Federal law adds a second command reaching only the U.S. flag: under the Freedom to Display the American Flag Act, a covered association may not bar a member from flying the U.S. flag on the member's own property or area of exclusive possession or use.¹ No South Dakota statute forces an association to allow a first-responder or service flag, a decorative or message flag, or any flag beyond the homeowner's one U.S.-flag-plus-one-additional-flag combination; those all rise or fall on the CC&Rs.

B. Reasonable conditions the association may impose

For the U.S. flag and the homeowner's one additional flag, SDCL § 11-5-7 already fixes the outer size limit — the U.S. flag no larger than 4.5 feet by 6 feet, the additional flag no larger than the U.S. flag displayed — so an association's discretion there is narrow.¹⁴ For the U.S. flag specifically, the association may also impose a reasonable time, place, and manner restriction that protects a substantial interest — the carve-out Congress wrote into the federal act.¹ For every other flag, and for location, lighting, and prior approval beyond what §§ 11-5-7 and 11-5-8 protect, the recorded CC&Rs set the governing conditions, because no further South Dakota statute supplies a rule. One limit binds that authority throughout: the association may not use a condition to ban the U.S. flag, the homeowner's chosen additional flag, or the flagpole outright.

C. Actions the association may not take

An association may not ban the U.S. flag, the homeowner's one chosen additional flag, or the flagpole to display them from — SDCL §§ 11-5-7 and 11-5-8 override any covenant, restriction, bylaw, rule, or requirement that says otherwise.¹⁴ For the U.S. flag specifically, an association also may not dress up a restriction as anything other than a genuine time, place, and manner limit tied to a substantial interest — that move exceeds the federal act on top of the state statute.¹ Selective or pretextual enforcement carries the same risk; a restriction that looks neutral but aims at a protected flag will not survive. Every other flag answers to the CC&Rs and to general covenant-enforcement principles, and South Dakota courts require an association to enforce its covenants consistently rather than selectively.¹¹

D. Enforcement and dispute resolution

The federal act carries no private right of action, so a federal claim to force compliance runs into a wall, as Murphree shows.² SDCL §§ 11-5-7 and 11-5-8 carry no enforcement mechanism or private-right-of-action language of their own, and South Dakota has no HOA regulator to decide disputes; the Real Estate Commission's condominium oversight does not reach flag fights.⁶ So a dispute lands in the circuit court, with appeal directly to the South Dakota Supreme Court.⁷ A fine that rests on an invalid flag restriction — say, a fine for flying the U.S. flag where the restriction runs past the federal carve-out — cannot stand.

Section 4 — Recent legislative and judicial activity

A. Recent bills

South Dakota passed no bill in its 2025 or 2026 regular sessions that would create or amend a flag-display rule for community associations.¹² One 2025 measure touched flags but never touched associations: House Bill 1269 (2025 regular session) would have authorized the display of certain flags on public property, but the prime sponsor withdrew it on February 7, 2025, two days after introduction. It did not concern community associations, and it did not become law.¹²

[Status: Withdrawn | Effective: N/A | Sunset: N/A | Last verified: July 16, 2026]

B. Recent rulings

No South Dakota circuit court or South Dakota Supreme Court decision in the past 36 months has resolved a flag-display dispute in a community association, whether under the federal act or a CC&R flag restriction.¹² The closest recent authority is a covenant-enforcement case, not a flag case. In Hood v. Straatmeyer, 2025 S.D. 12 (decided March 5, 2025), the South Dakota Supreme Court affirmed that "[t]he right to enforce [a] restrictive covenant[] may be lost by waiver or acquiescence," and that a circuit court holds the equitable power "to declare a covenant void upon a showing that enforcement of the covenant would be inequitable in light of widespread, unchallenged violations." That reasoning reaches the selective enforcement of any covenant, a flag rule included.¹¹

[Court: South Dakota Supreme Court | Decided: March 5, 2025 | Status: Final | Last verified: July 16, 2026]

C. Active legislative debates

No active South Dakota legislative debate over a community-association flag-display statute is on record.

Section 5 — National positioning and related coverage

South Dakota sits among the two- and three-flag states, which add the state flag and often military or POW/MIA flags on top of the federal U.S.-flag protection, a group that also includes Connecticut (Conn. Gen. Stat. § 47-261b), Minnesota (Minn. Stat. § 500.215), Nevada (NRS 116.320), North Carolina (N.C.G.S. § 47C-3-121), and Pennsylvania (American, Commonwealth and Military Flag Act, Act 93 of 2006, P.L. 608, No. 93).¹⁴ That sets it apart from several other models. Federal-floor-only states add no state statute at all and leave the CC&Rs to govern everything beyond the federal U.S.-flag protection. Narrow U.S.-flag-only statutory states protect the American flag by statute but little more, among them Alabama (Ala. Code § 35-1-5), Oklahoma (60 O.S. § 858), and South Carolina (S.C. Code § 27-1-60).⁹ Broad enumerated-list states protect a long roster, among them Arizona (A.R.S. § 33-1808), Florida (Fla. Stat. § 720.304), Idaho (Idaho Code § 55-3210), and Ohio (Ohio Rev. Code § 5301.072, which makes a violating covenant "against public policy and unenforceable in any court of this state").¹⁰ Content-neutral states such as Colorado (C.R.S. § 38-33.3-106.5) bar the association from regulating flags and signs by their message.¹³ For a multi-state operator, the takeaway is concrete: in South Dakota, SDCL §§ 11-5-7 and 11-5-8 protect the U.S. flag, the homeowner's choice of one additional flag, and the flagpole regardless of covenants; the federal floor separately backs the U.S. flag; the CC&Rs govern every other flag; and a civil dispute runs from the circuit court straight to the South Dakota Supreme Court with no intermediate appellate court. Because the federal U.S.-flag floor reads the same in every state, the U.S.-flag baseline does not change at the South Dakota border — but the additional-flag right is a South Dakota-specific protection an operator moving in from a federal-floor-only state should not assume away.

Federal frameworks — the flag act, along with the FHA, ADA, FDCPA, SCRA, and the OTARD rule — apply to South Dakota associations no matter what the state framework says.

Footnotes

1. 4 U.S.C. § 5, "Freedom To Display the American Flag" statutory note (Pub. L. 109-243, July 24, 2006, 120 Stat. 572), Office of the Law Revision Counsel, U.S. Code (uscode.house.gov, Title 4) ↩
2. Murphree v. Tides Condominium at Sweetwater by Del Webb Master Homeowners' Ass'n, No. 3:13-cv-713-J-34MCR (M.D. Fla. Apr. 1, 2014) ↩
3. SDCL Chapter 43-15A (Condominiums), including 43-15A-29 (lien for erection, repair, or improvement of a single development) and 43-15A-30 (promulgation of rules to administer and enforce chapter), South Dakota Legislature ↩
4. South Dakota Nonprofit Corporation Act, SDCL Title 47, Chapters 47-22 to 47-28, South Dakota Legislature ↩
5. Community Associations Institute, "Uniform Common Interest Ownership Act (UCIOA)" (listing enacting states; South Dakota not among them) ↩
6. South Dakota Real Estate Commission, Laws and Rules (administers Real Estate Licensing Act, Condominium Act, Timeshare & Subdivision Acts; ARSD Article 20:69); condominium public offering statement / public report per SDCL 43-15A-17 and 43-15A-19 ↩
7. South Dakota Unified Judicial System, "Court Structure" (two-level system: circuit courts and Supreme Court; no intermediate appellate court) ↩
8. Federal Flag Code, 4 U.S.C. ch. 1 §§ 1-10 (advisory rules and customs), Office of the Law Revision Counsel, U.S. Code (uscode.house.gov, Title 4, Chapter 1) ↩
9. S.C. Code § 27-1-60 (right to display the U.S. and South Carolina State flag), South Carolina Legislature ↩
10. Fla. Stat. § 720.304 (right of owners to display flags; enumerated list including U.S., Florida, service-branch, and POW-MIA flags), The Florida Senate ↩
11. Hood v. Straatmeyer, 2025 S.D. 12, No. 30180 (S.D. Mar. 5, 2025) (restrictive covenant void where enforcement inequitable amid widespread, unchallenged violations), South Dakota Unified Judicial System ↩
12. South Dakota HB 1269 (2025 regular session), display of certain flags on public property; withdrawn at sponsor's request Feb. 7, 2025 (LegiScan; South Dakota Legislature) — no 2025 or 2026 South Dakota bill addressing community-association flag display ↩
13. C.R.S. § 38-33.3-106.5 (content-neutral regulation of flags and signs in common interest communities), Colorado Revised Statutes (cross-verification of comparison state) ↩
14. SDCL § 11-5-7, Flag — Display, and § 11-5-8, Flagpole — Display (SL 2021, ch 57, §§ 1-2; overriding private covenants, restrictions, bylaws, rules, or requirements to protect one U.S. flag plus one additional flag — state, military-branch, or POW/MIA — and a flagpole) ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩ ↩