Can an HOA or Apartment Complex Ban Guns?

This is another interesting question sent to us and one the courts haven’t yet had to wrestle with in Texas that we’re aware of. Texas law does not address whether Homeowner’s Associations may infringe upon basic constitutional rights. Some states expressly prohibit HOAs or landlords from passing rules or regulations that bar its citizens from legally carrying self-defense firearms. Texas is not one of them. All is not lost.

Under American Jurisprudence, a Servitude (basically an HOA, but specifically defined as “a right by which something – as a piece of land – owned by one person is subject to a specified use or enjoyment by another”) cannot “unreasonably burden a fundamental constitutional right” (§ 3.1(2) Validity of Servitudes: General Rule, Restatement Third, Property (Servitudes) American Law Institute 2000). In other words, even though an HOA is allowed to set certain rules and regulations related to the properties it oversees, it cannot violate your rights wholesale. Additionally, a HOA rule or regulation that lacks “rational justification” is likewise invalid.

Many Home Owner Associations seem to be run by very authoritarian leaders. Many do not. Those that do feel as if they can rule over their “kingdom” with an iron fist and impose their will on everyone else. These are the people that will try to use “gun violence” as a “rational justification” for gun bans. This line of thought has been losing a lot of steam lately. Most recently, in the Matthew Grace and Pink Pistols v District of Columbia and Cathy Lanier opinion, a federal court in DC essentially laughed at the “more guns equal more crimes” mantra that so many anti-gun jurisdictions and entities espouse today.

All [the government] offer[s] by way of reasoning is that all guns, even guns carried in self-defense, increase the incentive for criminals to carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, “it is ‘not a permissible strategy’ to reduce the alleged negative effects of a constitutionally protected right by simply reducing the number of people exercising the right.”

The District’s policy thus bans some citizens from exercising their constitutional right to carry firearms outside the home for self-defense, and no amount of proof of the negative effects of exercising a constitutional right can justify a ban.”

So the question becomes does an HOA ban on open carry in public areas violate a fundamental constitution right. The answer is “no” as long as they aren’t also banning concealed carry. However, a sign saying “no guns allowed” would violate American Jurisprudence (common laws of the United States) and be “invalid” by law. An HOA also cannot prohibit carry on any land that is managed by the association of which a homeowner is a member.

In the same vein, condominium complexes are shared interests in which tenants own their particular condominium and the common areas. Penal Code 46.02 specifically allows for carry “on the person’s own premises or premises under the person’s control,” this includes the common areas of the complex. In fact, in the Texas Court of Criminal Appeals case Chiarini v. State of Texas, the court held that just that.

We conclude that appellant’s undivided ownership interest in the common area of the condominium complex made the common area appellant’s “own premises” under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.

The HOA may restrict guns in a community meeting room if the proper signage is posted at every entrance but the HOA cannot restrict guns in the entire HOA jurisdiction area. The bottom line is that in an HOA, it would likely be a very long, hard–fought battle if the board wants to challenge the home owners’ right to bear arms.

Where the law gets diluted and confusing for some is when applied to apartments or rental homes. Under current Texas law, private property owners can ban licensed open carry, concealed carry, or both in common areas of their “property” as long as they provide notice. Home owners and renters of houses are the same as to their rights. The same applies to renters in apartment complexes. You can also have guns in hotel and motel rooms for as long as the rent is paid but the hotel or motel may restrict the common areas by the proper signage if the signs are posted at every entrance to a common are.

It is not a stretch of the imagination that a resident in a rental property who is assaulted, injured, or otherwise victimized due to a landlord’s decision to disarm them could sue for damages for failing to provide adequate protection to the tenant. This is an area that apartment complexes and landlords need to take into account when drafting their tenant policies.

Like HOAs, no court would likely find in favor of a tenant if the landlord merely banned open carry in common areas because there is still an alternative to legally carry for self-defense on the property if concealed. Since there is an alternate available, the rights of the tenant are not being “irrationally” violated, even if the rationale of such a decision may not be agreeable to those of us that know better. Tenants in rental homes or apartment complexes in which the landlord has decided to place both 30.06 and 30.07 signs should have a talk with the management and make them aware that banning all guns on its property sets them up for lawsuits should anyone in the complex be victimized. At a minimum, this would at least dissuade them from posting 30.06 signs in common areas.

Keep in mind, though, that 30.06 and 30.07 signs only apply to the LICENSED carry of a firearm. Therefore, the signs are meaningless to possession of unlicensed firearms because Penal Code Section 46.02 provides an exemption as listed above. Since the signage requirements only apply to “license holders,” law abiding gun owners without a license who carry only in their vehicles or homes (or to and from them) wouldn’t be subject to them. In these cases, it’s best to keep it to yourself lest the landlord decide to close this loophole.

This is a problem that may require a legislative solution. It is a difficult balancing act between property rights, gun rights, and the inalienable right to life, which predicates a right to defend that life. If the legislature forbids landlords from completely banning guns on its property, then it essentially says gun rights trump private property rights. If it does nothing, it essentially says private property rights trump gun rights.

An unfortunate solution to this conundrum may be that someone gets injured, critically injured or dies as a result of a gun ban by a landlord. If a landlord is successfully sued into bankruptcy or feels the pain of such a lawsuit, other property owners will be forced to wake up and reevaluate their policies. This can be preempted by someone wealthy enough to preemptively sue or is able to find a sympathetic attorney to challenge the polices now since they do have standing for such a case.

The ability to ban guns only applies to privately owned rental properties and not publicly owned ones. Under Texas law, government entities CANNOT create rules or regulations more strict that state law, which includes banning guns in government housing.

To summarize, an HOA cannot completely ban guns within its jurisdiction because properties within it are privately owned even if communally managed. On the other hand, private property owners of homes or apartments can ban guns in common areas on their property if they choose under current law. The only choices are to accept it, challenge it in court, or choose not to live in such a place to begin with. Public housing is different since it is a government run entity and cannot ban guns of those that are legally allowed to possess them.

Now, for a dose of reality. When it comes to having to defend yourself if you are charged with a violation, the reality about what the law says is that the answer is “what the Judge or Jury says on that day.”
Unfortunately common law is often based on a particular set of bad facts. An example might be where someone accidentally discharges a weapon in an apartment complex and kills a child.  In this case, some Judge is going to hold that it is the right of the landlord to exclude guns and since the landlord did not exclude weapons then they are civilly liable for the shooting.  On the other side is the scenario that you are presented with where a Judge may create civil liability because the tenant was denied the right to carry concealed or otherwise.  Of course, the argument usually then goes that the legislature should give more clear guidelines.  A good example that is the current campus carry law where both sides are already trying to exploit the legislation that was written due to poor wording and an attempt by legislators piecemeal rights.
In the end, the only way to make this more black and white is to pressure the legislature to address is pointedly and specifically as possible.
Hope this does muddy up the waters further but it is the world we live in.

Open Carry Texas relies on the generosity of our members to complete our mission and objectives. Please consider being a high caliber supporter by making a monthly donation of $2.23, $5.56, $7.62 or any other amount here.

Disclaimer: This post is not intended to be legal and is shared for informational purposes only.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s