Guns allowed in apartments?

[jgcoastie]

I rent the home my family and I live in now. What with transferring every couple of years it just don't make sense to buy a house...

My landlords are a young married couple, about my age, and they are first-time landlords. They printed off a generic rental agreement online, which didn't make much sense at all for the location we're in. It prohibited me from possessing firearms within the home, clothesline in the backyard (even though the landlords had one when they lived there), required them to have licensed contractors perform all repairs, instead of me just taking care of most minor repairs and letting the landlords know (with a reduced rent for the month)... And it did not have the "military clause" written in (yes, I know the S&SRA provides it in law, but it is helpful to have both parties agree to recognize its existance instead of telling them 60 days before I leave that I'm moving cross-country). Yeesh... A headache for all of us.

So when I looked at the lease and saw all of this, I proposed that we draft our own. I opened up a Word document, copied/pasted relevant info from the electronic copy of the lease agreement, and typed in revisions to address the above concerns. We each took a copy to local lawyers to review and make sure our respective sides of the coin were covered, then we signed.

Yeah, it took a little extra work (and a fair amount of cooperation between both parties) but in the end, it was worth it to make sure we had the lease agreement that we both wanted. My landlords didn't want to keep me from possessing firearms or having a clothesline, and I didn't want that young couple to bear the cost of licensed contractors to fix a leaky sink or piece of siding blown off in a storm (not to mention the contractors coming and going in my house).

Work with your landlord, especially if they are reasonable individuals. If you're dealing with a corporation or business (apartment complex), things could get a little trickier....

YMMV.

 

[1911Alaska]

If my landlord said I could not have a firearm in my apartment I would move out the next day and live in my car lol.

 

[jason_iowa]

I have never seen such a thing in a lease and would ignore it if it were. A landlord has no right to dictate how you choose to defend your property. Even if you were to be caught you would not be breaking the law but a contract and the worst recourse would be eviction. Although that may not be grounds for an eviction you would have to talk to a lawyer.

Its really no different the carrying your cw into a store that has a policy against weapons on the premises. They have the right to ask you to leave but by initially ignoring the policy you have not broken any laws. In iowa anyway other states may vary.

 

[Spats McGee]

. . . .A landlord has no right to dictate how you choose to defend your property. Even if you were to be caught you would not be breaking the law but a contract and the worst recourse would be eviction. . . .

Incorrect. The landlord does have a right to propose the terms and conditions of your lease, including whether or not a potential lessee is allowed to possess firearms on the property. The apartment is, after all, private property. A potential lessee has the right to decline the lease and go look for an apartment elsewhere.

 

[carguychris]

+1 Spats. In addition, most states have statutes saying that a person cannot legally carry a gun on private property if he or she has been notified in writing that possession of firearms is prohibited there. This is different than specifically-worded signage that may be required to prohibit legal CCW by a CHL holder in a business that's open to the general public; I'm talking about other forms of written notice on property that's not necessarily public, such as an apartment.

IMHO a lease that prohibits firearms would certainly constitute proper written notice. If a lessee uses a firearm in self-defense, he or she may be vulnerable to charges of illegally carrying a weapon or even committing criminal trespass, even if the legality of the shooting itself is beyond question.

It is foolish to assume that "My Rights Will Protect Me" or "Legal Self-Defense is Always OK" in such circumstances.

 

[jason_iowa]

I stand by my statement. Cell phone companies can put in early contract termination fees but its illegal to do so in iowa so it has no validity. Same with leases that deny constitution or human rights or break discrimination laws. So ya a landlord can put whatever he or she wants in a lease but that does not make it legal.

I would rather be alive and looking for a new apartment then dead and a good tenant.

 

[Aguila Blanca]

I stand by my statement. Cell phone companies can put in early contract termination fees but its illegal to do so in iowa so it has no validity. Same with leases that deny constitution or human rights or break discrimination laws. So ya a landlord can put whatever he or she wants in a lease but that does not make it legal.

Stand wherever you choose. Spats McKee is a practicing attorney; what are your legal qualifications?

 

[Spats McGee]

jason_iowa, I would agree that it is possible that the State of Iowa has a state law prohibiting apartment owners from putting "no firearms" clauses in their leases. (Bear in mind that while I am an attorney, I am not licensed in Iowa. Accordingly, I have not researched Iowa law on this issue.) However, I have never seen a citation to a statute prohibiting such clauses. If you know of such a statute, point it out, and I'll gladly stand corrected. Until that happens, though, I maintain that landlords are within their rights to put such a clause in their leases. The Constitution does not mandate that a private landowner must allow arms on is or her property. It is really no different than a homeowner deciding that guns will not be allowed in his or her home. Their property, their rules.

The State's position on early termination clauses for cell phones has no bearing on the firearms issue. Whether any particular lessee "would rather be alive and looking for a new apartment then dead and a good tenant" is also irrelevant to the issue. I mean absolutely no disrespect in saying that, but the discussion of what you, I or any other person would prefer just doesn't have any impact on a property owner's right to dictate or mandate a given course of conduct.

ETA: I did a cursory search of Iowa's laws here: http://search.legis.state.ia.us/nxt/gateway.dll/ic?f=templates&fn=default.htm and was unable to locate any statute prohibiting "no firearms" clauses in lease agreements. That doesn't mean it absolutely isn't there, but I could not find it.

 

[jason_iowa]

Property ownership does not suspend the laws of the land. If the constitution guarantees me free speech, the right to practice my religion, and the right to bear arms for personal protection then I have that right.

I can write whatever I want in any contract I want that does not mean anything if its illegal or unconstitutional. If a landlord can deny you the right to bear arms then they can deny you the right to practice your religion and free speech right? No they can't. Have they been? Probably but that's only because someone did not fight for their rights. Governments can write unconstitutional laws and landlords can write unconstitutional leases and both have been and will continue too but they are not valid.

No I'm not a constitutional lawyer or scholar. Other then spending 8 years in the navy defending it I don't know anymore then anyone else that can read the constitution and SCOTUS decisions. This one was pretty clear in a recent decision.

 

[Spats McGee]

Property ownership does not suspend the laws of the land. If the constitution guarantees me free speech, the right to practice my religion, and the right to bear arms for personal protection then I have that right.

Nor does your right to keep and bear arms suspend a property owner's right to determine what happens on his or her property. The Constitution enumerates rights and defined the relationship between The People and The Government. It does not define the relationship that private parties may have between themselves.

As another example, let's say that I, a private actor, own a piece of property and want to allow my church to hold a political rally there. This type of activity (church gathering for political purposes) is clearly protected by the First Amendment (speech, assembly, politics and religion, all rolled into one). Does that mean that I am required to also allow a different church that holds very different views to hold their political rally on my land? No. The First Amendment does not apply, as I am a private actor. I can freely allow the First Church of the RKBA to meet on my land, and freely deny that same privilege to the Third Church of the Antigunner. (Both fictitious, mind you.) If I were a governmental entity, we would have a different situation.

I can write whatever I want in any contract I want that does not mean anything if its illegal or unconstitutional. If a landlord can deny you the right to bear arms then they can deny you the right to practice your religion and free speech right? No they can't. Have they been? Probably but that's only because someone did not fight for their rights. Governments can write unconstitutional laws and landlords can write unconstitutional leases and both have been and will continue too but they are not valid.

Sorry, no. You're mixing apples and oranges, and in more ways than one. First, private actors are not affected by the Constitution in the same way that governmental actors are. Second, laws and contractual provisions are analyzed under different frameworks. Laws may be unconstitutional and also illegal. Improper contracts between purely private parties can only be illegal, not unconstitutional.

Perhaps a few more examples will help: If a city (government entity) passes a statute that says "Possession of firearms within city limits is illegal," that statute might be unconstitutional, and hence illegal. OTOH, let's say that XYZ Corp (a private property owner) posts a sign saying "Firearms possession is prohibited on XYZ Corp's property." If there is no state law on the issue, then firearms possession on their property is prohibited, and their prohibition is perfectly legal. If there is a state law that says "firearms possession may not be prohibited by private property owners," their prohibitiion is illegal, but it's not unconstitutional.

When it comes to leasing real property and discrimination, a real property owner would be prohibited from refusing to lease to a particular racial, ethnic, or religious group. That's a federal statutory issue, and such discrimination is illegal, but it's not unconstitutional. Now, if we get off into public housing issues, then you have a governmental actor at work, and constitutional issues may arise. That, however, is the subject of a whole different debate.

Just to be clear, two separate issues here:
1) Private parties vs. Governmental actors; and
2) Laws vs. contract issues.

No I'm not a constitutional lawyer or scholar. Other then spending 8 years in the navy defending it I don't know anymore then anyone else that can read the constitution and SCOTUS decisions. This one was pretty clear in a recent decision.

I'm not asking you to be a constitutional scholar, and I appreciate your service. That said, all of the recent decisions to which I think you're referring were against governmental actors, either a city, a state, or some governmental official, acting (at least in part) in their official capacity as a government official. Notice that none of them were against a private party, acting in a private capacity.

ETA: Sorry to be so long-winded, but I am apparently incapable of briefly explaining constitutional issues.

 

[Frank Ettin]

....If the constitution guarantees me free speech, the right to practice my religion, and the right to bear arms for personal protection then I have that right. ...No I'm not a constitutional lawyer or scholar. Other then spending 8 years in the navy defending it I don't know anymore then anyone else that can read the constitution and SCOTUS decisions. This one was pretty clear in a recent decision.

Thank you for your service, but it's also clear that you don't understand constitutional law. The Constitution is completely irrelevant here. The Constitution does not regulate private conduct. The Supreme Court has made that clear.

As explained by the United States Supreme Court (Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614 (U. S. Supreme Court, 1991), emphasis added):

....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. ....

...landlords can write unconstitutional leases...

No lease written by a private landlord can be unconstitutional. The conduct of the landlord is not subject to the Constitution, so calling a private lease unconstitutional is completely meaningless.

...If a landlord can deny you the right to bear arms then they can deny you the right to practice your religion ...No they can't...

No he can't. But there is reason why a "no guns" clause in a lease can be perfectly valid and enforceable, while a landlord can't discriminate on the basis of religion. It would help to understand a little something about the laws related to discrimination.

[1] Yes, a "no guns" clause in a residential lease is discrimination, but in general discrimination is perfectly legal.

Every time you decide to shop in this store rather than that, you have discriminated. Every time you decide to buy this rather than that, you have discriminated.

Businesses discriminate all the time too, and legally. Apple stores discriminate against people who want to buy a PC by only selling Apple computers. Many restaurants discriminate against Orthodox Jews or Muslims by not strictly following the dietary laws of those religions. Many restaurants also discriminate against persons not wearing shirts and/or shoes by not admitting them. Tiffany discriminates against poor people in the prices they charge.

Discrimination is merely choosing one thing over another or rejecting a possible choice. Discrimination is the very essence of freedom and private property. It is the right to choose. It is the right to exclude. It is the right to decide how you want to use your property. Discrimination is perfectly legal, unless some law makes it illegal.

[2] To the extent it may be illegal for a landlord to discriminate, it's because of a statute and not the Constitution.

There are laws that make discrimination illegal on various, specifically identified and defined bases such as race, religion, national origin, gender, sexual orientation, and some others, illegal -- at least if you're a landlord, a business open to the public, an employer or in some other specified category. These various anti-discrimination laws only prohibit discrimination on those various specified grounds. Having a gun isn't one of them.

The leasing of residential property is also heavily regulated by statute. There are laws about clauses that have to be in a lease and about clauses that may not be in a lease. There are laws about the rights of tenants.

[4] Conflicting rights often rub against each other, and when they do, it's been customary in our system for a legislative body to decide priorities and enact laws to ameliorate the rubbing.

Landlords renting residential property are subject to substantial regulation. The various requirements, regulations and rules to which a residential landlord is subject arose through the political process in which interested parties can participate; and they therefore reflect a considered determination by a legislative body or authorized administrative agency that as a matter of public policy the public interest served by the requirement, regulation or rule was sufficient to justify impairment of the property rights of the landlord.

...If a landlord can deny you the right to bear arms then they can deny you the right to ...free speech right?...

Beats me. As I sit here, I can't immediately think of any particular law which would prevent it, although there may be such a law; but I'm not interested in doing the research. Certainly, however, limitations on free speech would probably make a residential property unmarketable as a practical matter.

On the other hand, if an apartment were not wired for cable or satellite, a landlord could prohibit alteration of the premises to accommodate a cable TV or a satellite TV hook up. And a landlord can, for example, prohibit in a lease excess noise or loud parties.

 

[jason_iowa]

The iowa SC dealt with this issue when I was in high school as it related to hotel rooms. The court found that hotels did not have the right to ban firearms from peoples hotel rooms I don't see how its any different then any other rental property. I understand how the constitution works and I'm sure you agree that its the basis for which all other law is derived in our country.

In iowa a city can not legally ban firearms from city limits or public property. Some citys have passed laws but they are being challenged and will be overturned.

Regardless I stand by my original statement that I would ignore it and that no one is going to dictate to me how I choose to defend my loved ones and there is little or no recourse that could be taken.

 

[Spats McGee]

If you can tell me an approximate year on that decision, or give me the names of any of the parties involved, jason_iowa, I'll be glad to try to find that decision. Maybe then I can offer a little better guidance on sorting these things out.

 

[Don H]

There's also an ethical side to the issue: is it ethical to sign a contract with no intent to abide by its provisions? If it is, in your opinion, OK to ignore aspects of a contract you agreed to, is it also allowable for the owner/landlord/manager to not abide by the contract provisions?

 

[Frank Ettin]

The iowa SC dealt with this issue when I was in high school as it related to hotel rooms. The court found that hotels did not have the right to ban firearms from peoples hotel rooms I don't see how its any different then any other rental property...

If you provide some information that might permit Spats to find the case, we'd have some way of knowing the basis for the decision, and exactly what that decision actually was.

But the details are important, and there are probably many ways in which to distinguish innkeepers from residential landlords. For example, just as most States have statutes and case law extensively regulating the rights and obligations of landlords in connection with residential leases, so do most States have statutes and case law extensively regulating the conduct specifically of innkeepers. If the court made its decision based on "innkeeper" law, there's no reason why it would also apply to other rental property.

So while you might not see how a hotel room is different from any other rental property, that doesn't mean that the court in the way it framed its decision would not have found a hotel room to be different from other rental property.

BTW, there is at least one State, I believe it's Michigan, with a statute expressly prohibiting a landlord from prohibiting a tenant with a conceal carry permit from having a gun in his rental property.

...I understand how the constitution works and I'm sure you agree that its the basis for which all other law is derived in our country...

As a lawyer who has practiced law for more than 30 years, I most definitely do not agree. Most of the law of our nation derives from the 500 (+/-) year tradition of the Common Law of England. Marital property law in States formerly under the hegemony of Spain or France derive from Civil Law.

The Constitution is the core to an important and significant body of law in the United States. But the Constitution really has nothing to do with the great bulk of our laws.

...In iowa a city can not legally ban firearms from city limits or public property. Some citys have passed laws but they are being challenged and will be overturned...

That is largely the case in most States. It is so because in most cases state statutes regulating firearms expressly preempt (or supersede) local laws. But that has nothing to do with the topic of this thread.

...Regardless I stand by my original statement that I would ignore it and that no one is going to dictate to me how I choose to defend my loved ones and there is little or no recourse that could be taken.

You certainly have the power to violate the terms of a contract you have made. However, a landlord would have recourse, including eviction and, perhaps, a claim for damages. Whether that is "little" recourse is a subjective value judgment.

 

[Aguila Blanca]

No I'm not a constitutional lawyer or scholar. Other then spending 8 years in the navy defending it I don't know anymore then anyone else that can read the constitution and SCOTUS decisions. This one was pretty clear in a recent decision.

Okay, then ... which decision, and exactly where in that decision did it stipulate that owners of private property could not establish rules regarding what is and what is not allowed on their property?

The logical extension of your argument, of course, is that if you are correct it must also be unlawful for the owner of a shopping mall to post "No Firearms Allowed" signs and to evict people caught carrying on their property. Are you also arguing that you have an absolute right to ignore the owner's rules and carry in a shopping mall that's posted?

Regardless I stand by my original statement that I would ignore it and that no one is going to dictate to me how I choose to defend my loved ones ...

Your choice. But your choosing to ignore a clause in a lease does not make it illegal.

... and there is little or no recourse that could be taken.

Well, of course there is recourse. The landlord can evict you for violating the terms of your lease.

 

[Glenn E. Meyer]

I haven't seen an analysis that Heller negates property bans. Law articles, books - haven't seen it.

SCOTUS decisions and legislation have affected businesses (I guess a rental is a business) when it comes to discrimination against protected classes. But gun ownership and carry is not protected in that fashion.

The argument that businesses can ban CCW would be used to support the same in apartments or rental houses. Heller applies to the government.

Specific legislation or a SCOTUS decision would be needed but I doubt SCOTUS would go near this.

 

[jason_iowa]

This was almost 20 years ago I really don't recall the specifics. I did deal with this issue years later while working as a law enforcement officer in arnolds park a resort town in the iowa great lakes area but it was a hotel issue not apartments.

yes I said in an earlier post that little or no recourse would include eviction if the clause was enforceable. Just this spring we had a shooting at college apartments 30 miles from my house. It was off campus thankfully no one was killed but at these same apartments a few years ago two women were killed there. So imo eviction is not a big deal. Not having the chance to defend yourself is. (Cedar rapids, kirkwood apartments)

I have never had to rent in iowa or anywhere else but someone brought up ethics and I believe it unethical to deny someone the right to protect themselves and loved ones. Anyone who works or has worked in law enforcement will tell you that they are not there to protect you but to gather evidence at the crime scene to convict your murderer. You are the only one who will protect you and your loved ones.

In iowa posted signs saying no weapons allowed have no legal authority so yes I ignore them. I disarm to go into my fathers office but that's state property and its more out of respect then any legal obligation.

 

[Frank Ettin]

...yes I said in an earlier post that little or no recourse would include eviction if the clause was enforceable...

The clause is enforceable. Your view that eviction is "little recourse" is your personal, subjective evaluation. For some people, eviction could have more serious consequences.

An eviction can be reported on a credit report and might make it harder for one to get a new place to live or a loan. It may also have negative consequence in connection with one's employment. And for people with families, it can be a significant expense and cause serious disruption to their lives.

...I believe it unethical to deny someone the right to protect themselves and loved ones....

Yes, it is entirely reasonable to believe that it's unethical for a landlord to require a "no guns" clause in a residential lease.

But you have been asserting that a "no guns" clause in a private, residential lease is illegal and unenforceable. And, at least in the vast majority of States, that is not true.

 

[Brian Pfleuger]

Some people also consider it unethical to sign a contract which you have no intention of honoring....