Generally a private landlord can make a decision about whether to say ‘no guns’ in my rental property, unless a state forbids landlords from banning guns, according to Denny Dobbins, general legal counsel and vice president of RentPerfect.com.
By John Triplett
State laws vary on the issue of what landlords can mandate regarding saying “no guns in my rentals,” and gun possession in general by tenants in privately owned rental properties.
Landlords and property managers need to be aware of whether their state or local government has specific laws, Dobbins said in an interview with American Rental Property And Landlords Association.
Only four states have specific statutes laws regarding guns in rental properties:
- Minnesota says a landlord cannot restrict the lawful carry or possession of firearms by tenants or their guests Minnesota Statute 624.714
- Tennessee: A private landlord can prohibit tenants, including those who hold handgun carry permits, from possessing firearms within a leased premises. Such a prohibition may be imposed through a clause in the lease. Tennessee Statute 39-17-1307(b).
- Virginia public housing prohibits landlords from restrictions on gun possession for tenants – VirginiaRental Housing Act 1974 Tennessee 55-248.9.6.
- Wisconsin has a complicated maze of where a weapon can and cannot be possessed. W Stat. § 175.60(21)(b).
All the other states are generally silent on the issue, Dobbins said, meaning that private housing providers can choose what they want to do on the issue. California, Arizona, Colorado, Oregon, Utah and Washington are five of the states that are silent.
For instance, Virginia law says public landlords cannot use a prohibition clause in their lease, and it does not require that a gun-free zone sign be applied or at the property.
“Now in Minnesota they have a different law. Generally, private landlords may not restrict the lawful carry of firearms by tenants. All the other states are silent on whether private landlords can prohibit tenants from carrying weapons or possessing weapons on the property,” Dobbins said.
Unless your landlord is a governmental entity, like a city, or state, agency, public housing or receives state or federal funding for rental assistance on your property, the Second Amendment is unlikely to apply. However, private housing providers prohibiting tenants from possessing firearms in a residential rental unit raises other constitutional and insurance issues.
Can a landlord say ‘no guns’ in my rentals?
“Generally, the answer is yes. But, I think we need to take the most practical approaches we can for all the issues surrounding the question such as having something in our lease that says, ‘Keep your weapons inside, and if you bring them onto the common areas we will evict you. If you keep them to yourself, safely tucked away in the private confines of your rental, that’s fine. We don’t care.’
“For me, I would simply say to private landlords, ‘Look, the real issue here that you want to protect against is for tenants having guns willy-nilly, or just being carried around and shown off on the property.
“You can stop that kind of behavior cold in the common areas altogether so go ahead and put something in your lease to stop it. Prohibiting that kind of behavior will help protect against liability issues, insurance issues and 2nd Amendment challenges. What about prohibiting tenants from having guns in their rental? Generally, a private landlord can do that too, but there are a wide variety of issues to think about when you do so.”
“Most states have not made a decision whether or not to prohibit the constitutional rights of someone who wants to have a weapon in their rental unit for their own protection. What that means is that leaves it up to the private landlord to make a decision,” Dobbins said.
“Yes, a private landlord can say, ‘We prohibit all tenants from possessing a gun anywhere on the property.’ The private landlord can make that decision because there hasn’t been a case yet that draws the 2nd Amendment into the private landlord decision-making process on the issue as has happened with Fair Housing issues like race, color, national origin, familial status, religion, gender, age, military status and Americans with disabilities.”
“That’s going to pit the private landlord who says, ‘No guns in my rentals’ or weapon possession in the rental against the tenant who says, ‘Well, I have a constitutional right to a weapon to protect myself.’ That case has not been heard yet.” Dobbins said he thinks we will eventually hear that issue because “someone is going to finally get that case to the Supreme Court.”
“From a practical point of view on the liability issue, let’s say a landlord says, ‘No weapons possession in the rental.’ The tenant moves in and he wants to possess a weapon in the rental but he decides to live there without possessing a weapon. Now somebody breaks into his home and kills his wife and his kids and he didn’t have a weapon to protect himself and his family. I don’t want to be that landlord who says ‘No guns in my rentals’ because I don’t want to get sued because I took that personal constitutional right away.
“The landlord is going to say, ‘He agreed to it and he moved in.’ Of course, the person who had their family killed is going to say, ‘Yeah, but I still had a right and you made me not have a gun and took away my 2nd Amendment constitutional rights to protect my family.’
“I don’t want to be that landlord,” Dobbins said. On the other side, if weapons are allowed on the property and someone gets killed or injured by a tenant intentionally, or even negligently, from a discharge of a weapon on the property, even while inside their own rental, you know the attorney for the injured is going to go after the deep pockets of the landlord and manager and their insurance companies. It is an ugly Catch 22.”
Issues on how ‘no guns in my rentals’ would be applied
“You run into a few issues in terms of how that is applied in actual practice. For instance, where you have a law that says landlords can prohibit gun possession in a rental in a lease, well, how are you possibly going to enforce that? You don’t know what a tenant brings into the property,” Dobbins said.
“You don’t know what they’re going to have in their home. You don’t know if they have weapons in their rental. You can’t really go in and inspect for weapons. If they have a safe you can’t go look in the safe to see if they have weapons. Even if a state has a rule that says you can prohibit weapons, there’s no practical way to enforce that rule.
“The second issue then becomes really important, ‘Do you really want to be the case of first impression?’ Meaning, do you really want to be the landlord who takes on some attorney and a 2nd Amendments rights person because the landlord says you can’t have a gun in your own rental home to protect yourself? We have all seen lately that the crazy people, mentally ill people, criminals and terrorists can get guns. So, why should a private landlord have a rule where concerned tenants cannot possess a gun in their rented home? A private landlord does not want to become the trial case for a tenant who says, ‘Wait a second. I have a 2nd Amendment right to carry and to have weapons to protect myself and my family.’
“The landlord says, ‘Well, having a weapon on a private property is not a protected class like the protected classes listed above. Having a right to possess a weapon in one’s rental unit is not a current enumerated protected class,” Dobbins said.
“But, I tend to disagree with those people who say it’s not a protected class because there is a constitutional personal right to bear arms – period. The protected classes in the housing arena listed above are all federal mandates. Well, an enumerated constitutional right in my mind is the same thing. A court case will determine that issue at some point.”
Let’s back up and look at the issue
Dobbins suggested looking at two 2nd Amendment cases he thinks makes the tenant’s right to a weapon in the tenant’s rental home a personal right, and thus, a protected class.
“Here’s what we know. The federal government can impose some restrictions on guns. There have been a lot of debates over time as to what the 2nd Amendment means because it has a phrase in it regarding militias and it also talks about “the people’ right” as opposed to a “person’s right.” There’s been this idea that the ability or the right to bear arms is not a personal right. Rather, that it is a right of the people for a prepared militia.
“This issue came up in a case in the U.S. Supreme Court in 2008. It’s called the Heller Case. It dealt with individual rights to possess weapons. The Heller case made it very clear that there is an individual right to possess weapons as opposed to just a right of the people for the purposes of maintaining a militia.
“The restrictions, Heller goes on to say, deals with felons and the mentally ill. Such people have no personal rights because those rights are stripped for the mentally ill and felons. There still remained a question after Heller. The question after Heller was, ‘Well, that’s great but what about the states? How does the Federal law impact state laws on the subject? ‘
“In 2010, the McDonald case went before the Supreme Court and that dealt with the 14th Amendment, which forbids states from passing rules to the contrary of the federal law. There were basically four elements in McDonald that they dealt with: whether there could be a state prohibition against handgun ownership, whether a state could force an annual gun registration and impose a fee for annual registration, require that guns be registered prior to acquisition, and whether a gun could be forever unable to be registered if the registration lapsed. Those laws were struck down in the McDonald case. Basically the opinion stated that the 14th Amendment applies as to the individual right to possess guns and that states cannot pass laws that infringe upon that federal constitutional right.
“So it seems to me that private landlords forbidding tenants from possessing firearms in their rentals could be successfully challenged based on the 2nd Amendment, I think, because Heller and McDonald make it a personal right, which I think makes it a protected class,” Dobbins said.
“I guess the simple answer is in those five states that we mentioned…private landlords in those states can choose what they want to do, but when a private landlord chooses to ban tenants’ ability to possess a firearm in their rental home they face the ugly music of liability issues and constitutional infringement,” he said.
A proposed lease clause on how landlords might walk the fine line of dealing with tenants’ possession of guns in their rental property
Dobbins said he would propose the following lease clause for landlords to consider.
“For me, as a landlord, I would say ‘No weapons in the common area.’ This is something that I put in my leases and in my client leases. It provides reason, accountability and protections for the Landlord, the tenants and staff. It’s a section called ‘Weapons’ for the lease and this is what it says:
Denny’s suggested lease clause
“Weapons of any kind, including, but not limited to, dart guns, air guns, BB guns, slingshots, handguns, rifles, or any mechanism that could be used to propel an object that could cause harm to person or property are not allowed in the common areas, are not allowed in the office, are not allowed anywhere on the premises outside of the actual unit, and are not allowed to be displayed, shown, exposed, demonstrated, or exhibited anywhere in the community premises, except in case of self-defense or the need for imminent and immediate protection of residents’ life or property, or for self-defense or immediate and imminent protection of resident, resident’s occupants, guests or invitees life, or property. If a resident desires to possess a legal weapon in resident’s unit in that case the resident must safely and inconspicuously carry said legal weapon to and from the Resident’s unit in a manner that resident ensures other residents and staff do not see said weapon. Illegal weapons are never allowed visibly on the property outside of the unit. If resident or resident’s occupants do possess a legal weapon in the unit, resident shall be responsible for the proper and safe possession, handling and storage of said weapon. Landlord is not and shall not be responsible in any way to resident, occupants, guests, or invitees for any accidental, negligent, or intentional act involving any weapon or discharge thereof on, near, or off the property.”
“That’s my clause,” Dobbins said. “It covers a lot of ground because I don’t want to take away tenants’ the right under the 2nd Amendment after the Heller and McDonald cases yet we need to make sure that tenants understand, in the common areas especially, if they brandish or show a weapon they will be evicted. However, I do not think it is a good idea to take away a tenant’s right to possession in their own rental home. That is just how I personally look at it. Each private landlord has to make a decision on this subject based on an analysis of all the factors set forth in this article. I suggest you talk to your attorney and your insurance broker to make your own decision on the subject,” Dobbins said.
What about restrictions on ammunition in rental property?
Can the private sector, can private landlords say you can only have so much ammunition? Or no ammunition?
“Yeah, private landlords can if they want to, but the same factors are at issue as for gun possession in a tenant-rented unit.”
“Here’s another issue to think about. Let’s say a private landlord prohibits the possession of firearms and the private landlord calls their property now a ‘gun-free zone’ or a ‘weapon-free zone.’ In my mind, they’ve done exactly what the schools have done when you call a school a gun-free zone. You’ve just opened it up to the crazy people and you’ve said, ‘Hey, nobody here has weapons, come over here and break in. Come over here and cause havoc to our property because no one is allowed to have weapons here and cannot defend themselves. Come in and steal from them, rob them, do whatever you want to do with them.’
“I think that sets a very bad precedent and as a premises liability expert, I would say that by doing that you’ve now opened yourself up to say you called yourself a gun-free zone, when it is just not true. You’ve invited bad guys to your property and you intentionally, unknowingly maybe, but still intentionally put your residents at risk of harm. That’s how I look at it.
“Once you invade someone’s privacy in their home for their own protection and their own desires regarding the 2nd Amendment, now you’re creating some issues that you don’t really need to create. Even if a landlord has a prohibition for tenants regarding guns or ammo, it’s not going to stop someone from having weapons if they want them in their rental. So why have the rule at all? Why take on extra liability and extra problems when we know that possessing a weapon in one’s rental home is practically unenforceable. A tenant should be able to possess a firearm if they want one, but if the tenant goes around bragging about it, or showing it off, that tenant needs to go.
“Now if a management company maintenance employee goes in and he sees a stockpile of ammunition or weapons I would immediately contact the authorities and let them deal with it as they will,” Dobbins said.
Should property managers have guns?
Two property managers in Portland were shot by a tenant following an eviction last year. Should property managers have guns?
“Well, I think we’re getting into that debate a little bit with one of the remedies that’s been brought up about possibly arming teachers. In Israel the government trains and allows trained teachers to be armed for many years now. Israel has no problem with gun violence in schools because everyone knows the teachers are not only armed but they’re trained.
“Now that’s something for property management to decide because they’re put in the pickle of, ‘Okay, if my managers and staff have a weapon and they use it, am I going to be sued?’ If they don’t have a weapon and can’t use it, am I going to be sued? They’re in a real pickle because if they do allow staff to carry they need to make sure those staff members are very well-trained and don’t misuse that weapon.”
“For me as a property owner I would not mandate my staff to possess weapons. However, I would not take my staff’s constitution right to protection away either. If the staff lawfully carries a concealed weapon, that is their choice. However, I would not want them to carry openly. Again, you have to decide as a landlord how to handle this issue after consultation with your attorney and your insurance carrier.”
Summary on ‘no guns’ in rental property:
“There’s something to the deterrent factor, whether you have a liberal slant on guns or a conservative slant on guns. The facts are the facts. We just have to deal with them in a practical way. There are no easy answers as to what private landlords should do about whether or not they allow their tenants to possess a legal firearm in their own rental home in the face of constitutional rights, liability issues, insurance coverage and individual feeling about weapon possession. But, it is an issue that needs deep thought and consultation with professionals.
“I think we need to take the most practical approaches we can for all of these issues, having something in our lease that says, ‘keep your weapons inside’ and if you bring a weapon in the common area we’re going to evict you. Or, no weapon possession allowed period and if we learn you possess a weapon on the property, we are going to evict you. Whatever your chose, make sure that it in writing and cannot be misunderstood. If you have something in your lease on the subject, make it crystal clear.”
About Denny Dobbins:
J.D. “Denny” Dobbins, Jr. is RentPerfect’s legal counsel. He brings more than 20 years of experience and a passion for protecting businesses, their customers and their bottom lines. Dobbins works with company attorneys to develop pertinent criteria to assess risk factors for granting access by individuals to customers and facilities. He also testifies as an expert on negligence, negligent hiring and negligent retention, especially relating to non-delegable duties. His job is to help CrimShield investigators understand the laws of every state, as each state has different statutes and legal terminology.
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