OC in a Gated Condo Community (HOA)

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I was having a casual conversation with a friend of mine who I've been trying to convince to open carry. He has a XD45 (love the way that weapon shoots /drool) and some other assorted weapons that he keeps within his condo that he recently purcahsed. He's always been one interested in self defense of his home but has never really given OC a second thought.

I went out to a steak joint with him and OC'd my .40 and I didn't have any issues. He seems reluctant still and I just told him; look, its not illegal, you are within the law and your not 'doing' anything wrong. He said he'd think about it.

Recently, the HOA condo community that he lives in rebranded itself as a 'appartment community' because of the housing slowdown. So, in his words, the quality of persons moving into his community has decreased and the property itself has begun to show signs of lack of attention and care. He's noticed that a few persons even walk thier dogs in the community without leashes (the big dogs, not lil poodles mind you). He's gotten to the point where he's reluctant on going outside and walking his own dog for fear of a dog fight or him being attacked by one of these large dogs.

I mentioned to him again that OC here is your best option. If a large dog were to come after him or his dog and the owner can't restrain his attacking dog at least it'll give him an option.

Now, he's agreed that it might be time for him to start OC'ing (yay!) but now he's concerned that because he lives in a gated community where new people are being allowed to rent instead of buy that the HOA might declare the public grounds as a 'no gun zone' and take away his ability to OC or CC.

I hope this scenerio makes sense and I'd like to get a gut feeling on if the HOA can excercise control over the common property and restrict his ability to carry.

Thanks,

-X

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Not knowing specifics about the community, I'd have to say the HOA can shove off! I work in land development and there are basically 2 types of land - public and private (duh!). Most streets are public with the small exception of private streets, which could very well be the case here. I've designed a few apartment/townhome projects and most are private roadways, of which usually the HOA is responsible for the upkeep. Not sure if that puts them in the position to prevent OC, but I know my HOA doesn't allow any parked vehicles in the streets that can't be moved upon request.

I'm not sure of the extent of the powers of a HOA, but I've seen some that pull enough weight to basically govern a small town. (cough, cough....Brandermill....cough, cough).

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I guess the only way they could disarm him is if he AGREED to it in the HOA rules before he moved in (Why anybody would do that? I have no idea...). Other than that, I doubt they could do anything at all other than whine and complain.

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The best thing he could do would be to run for the board of directors. That way there would be at least 1 vote against any such rule.

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I don't know the exact law (I know; go ahead and flag me, blow the whistle and give me a red card) but I know that there isa lawthat says land-lords can NOT prevent you from keeping firearms. I will see if I can findand citethe code so that the penalties will be withdrawn.:?

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VApatriot wrote:

I don't know the exact law (I know; go ahead and flag me, blow the whistle and give me a red card) but I know that there isa lawthat says land-lords can NOT prevent you from keeping firearms. I will see if I can findand citethe code so that the penalties will be withdrawn.:?

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I do believe this to be the case, but unless you AGREE to disarm, they can't do anything. Good luck finding the code. I'll make sure to write it down for my own reference.

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At least in Nevada, HOA rules can change after someone buys they house. By-laws and CC&Rs require a majority of homeowners to change and it can be quite difficult to just get half the homeowners to respond, much less get 51% to take one particular side of a issue.

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I would venture to say that an HOA cannot supercede your Second Amendment rights under any circumstances. Just think. Were they able to do this, they could also say you cannot voice your opinions, wear deck shoes, or cook on your grill. Yes, they do exercise a lot of power (in my opinion, far too much power).

Entering into an HOA agreement is a contract and for a contract to be valid in law, it must pass these "tests".

1. It must be a legal endeavor. (you cannot contract with someone to rob a bank)
2. All parties, or their bonafide agents, must sign the contract.
3. Consideration must be made.

While an HOA agreement would satisfy items 2 and 3, if you were denied the right to possess arms, it would be in violation of item #1.

I had a new home built in 1999 in my development. I decided soon after that if I ever received a letter stating something along the lines of, "A complaint has been filed against your property for the infraction of ....", that I would write back with something like this. "Please submit the name and address of the complainant so that I may begin the process of ....". I suspect this would raise the eyebrows of a few of the HOA people, but I would stand my ground based upon my rights under the Sixth Amendment which entitles me to face my accuser.

Bill Clinton tried to have federal marshalls enter dwellings in a Chicago housing project back in his first administration to search for firearms. He was advised that this would be in violation of the Fourth Amendment, whereby he instructed Janet Reno to find a way around the Constitution (actually the Bill of Rights) to allow his agents to do this. He failed.

HOA's cannot have absolute power and the tread in dangerous territory when they mess with the Bill of Rights.

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I think the problem here is the "community property" which is private property.

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My girlfriend is a property manager for a 690some apartment community in herndon. She said legally they can not prevent anyone from Opencarrying or CC on the grounds and its a gated community. So you should be able to carry all you want.

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Generally speaking, only the government and those acting as agents of the government are constrained by the Constitution (with limited exceptions). A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice, and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained. In plain English, while I am an attorney, I am NOT your attorney and I am NOT giving you legal advice.

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Some jurisdictions, South Carolina, do not allow a landlord of any sort to prohibit guns in a home.

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Carpetbagger wrote:

... A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

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I would bet this would not stand up court and I would also bet that you could go about your daily affairs, carrying whatever weapons you wish without any worries of your rights being intruded upon by any HOA.

Let me put it this way. Suppose a neighbor in my development saw me carrying my AR15 and several other "scary" weapons out to my truck with a load of ammunition to boot, and complained to the HOA. Now let's say the HOA visited me with a letter demanding I not act in this matter again. So you think for one minute that I would follow the dictates of that demand? Hell, more than likely I would be of the mind to answer my door with several guns in hand and strapped to my side to send a message to these Nazis that their presence on my property is no longer welcome and it would be in their distinct interests to vacate immediately.

Personally I can't stand the bastards.. it's the Southern in me.

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SouthernBoy wrote:

Carpetbagger wrote:

... A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

Click to expand...

I would bet this would not stand up court and I would also bet that you could go about your daily affairs, carrying whatever weapons you wish without any worries of your rights being intruded upon by any HOA.

Let me put it this way. Suppose a neighbor in my development saw me carrying my AR15 and several other "scary" weapons out to my truck with a load of ammunition to boot, and complained to the HOA. Now let's say the HOA visited me with a letter demanding I not act in this matter again. So you think for one minute that I would follow the dictates of that demand? Hell, more than likely I would be of the mind to answer my door with several guns in hand and strapped to my side to send a message to these Nazis that their presence on my property is no longer welcome and it would be in their distinct interests to vacate immediately.

Personally I can't stand the bastards.. it's the Southern in me.

Click to expand...

It all depends on what you agreed to in the HOA agreement and what the state law is. In many states, if you violate the covenants the HOA can fine you, slap a lien on your house if you don't pay the fine, and force a sale of your house to satisfy the lien.

If you feel that strongly about those Nazis, don't buy a house in a subdivision with a HOA.

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Carpetbagger wrote:

SouthernBoy wrote:

Carpetbagger wrote:

... A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

Click to expand...

I would bet this would not stand up court and I would also bet that you could go about your daily affairs, carrying whatever weapons you wish without any worries of your rights being intruded upon by any HOA.

Let me put it this way. Suppose a neighbor in my development saw me carrying my AR15 and several other "scary" weapons out to my truck with a load of ammunition to boot, and complained to the HOA. Now let's say the HOA visited me with a letter demanding I not act in this matter again. So you think for one minute that I would follow the dictates of that demand? Hell, more than likely I would be of the mind to answer my door with several guns in hand and strapped to my side to send a message to these Nazis that their presence on my property is no longer welcome and it would be in their distinct interests to vacate immediately.

Personally I can't stand the bastards.. it's the Southern in me.

Click to expand...

It all depends on what you agreed to in the HOA agreement and what the state law is. In many states, if you violate the covenants the HOA can fine you, slap a lien on your house if you don't pay the fine, and force a sale of your house to satisfy the lien.

If you feel that strongly about those Nazis, don't buy a house in a subdivision with a HOA.

Click to expand...

I live in an HOA community, I have served on the HOA BOD, and, I OC and CC everyday. I have also been told of many robberies, shootings, etc. by that same HOA. I wish the HOA would restrict me from the means to protect myself. I definitely would have heartburn with that!!

I would be curious to know if there are roving patrols, armed guards, andCCTVs in that gated community (not that it will keep you safe). Because, if that HOA passed that rule to prevent self defense, they should have no problem with civil suits that could arise if something tragic happens to anyone in that community!!

2nd Amendment......Use it........Or, lose it!!:X

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Smurfologist wrote:

Carpetbagger wrote:

SouthernBoy wrote:

Carpetbagger wrote:

... A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

Click to expand...

I would bet this would not stand up court and I would also bet that you could go about your daily affairs, carrying whatever weapons you wish without any worries of your rights being intruded upon by any HOA.

Let me put it this way. Suppose a neighbor in my development saw me carrying my AR15 and several other "scary" weapons out to my truck with a load of ammunition to boot, and complained to the HOA. Now let's say the HOA visited me with a letter demanding I not act in this matter again. So you think for one minute that I would follow the dictates of that demand? Hell, more than likely I would be of the mind to answer my door with several guns in hand and strapped to my side to send a message to these Nazis that their presence on my property is no longer welcome and it would be in their distinct interests to vacate immediately.

Personally I can't stand the bastards.. it's the Southern in me.

Click to expand...

It all depends on what you agreed to in the HOA agreement and what the state law is. In many states, if you violate the covenants the HOA can fine you, slap a lien on your house if you don't pay the fine, and force a sale of your house to satisfy the lien.

If you feel that strongly about those Nazis, don't buy a house in a subdivision with a HOA.

Click to expand...

I live in an HOA community, I have served on the HOA BOD, and, I OC and CC everyday. I have also been told of many robberies, shootings, etc. by that same HOA. I wish the HOA would restrict me from the means to protect myself. I definitely would have heartburn with that!!

I would be curious to know if there are roving patrols, armed guards, andCCTVs in that gated community (not that it will keep you safe). Because, if that HOA passed that rule to prevent self defense, they should have no problem with civil suits that could arise if something tragic happens to anyone in that community!!

2nd Amendment......Use it........Or, lose it!!:X

Click to expand...

Let's just say for argument's sake that some HOA did have a covenent that prohibited the carrying of firearms within the confines of the community except in cases where they were being transported to a shop, a range, or a hunt. In such a case were I to live in this community, I would test the hell out of this "reg" and drive their butts crazy. And there's not a damned thing they could do about it because they have no power of law or authority. And my Constitutional rights supercede their "regs". Suppose I got maybe 50 or 60 of my neighbors together to walk the streets of the community fully armed and fully visible? Do you think that anyone would complain? These are your neighbors.. you could make their life miserable.

With the exception of family and friends, a man who cares or worries about what others say of or about him is truly a sorry example of a man.

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SouthernBoy wrote:

Smurfologist wrote:

Carpetbagger wrote:

SouthernBoy wrote:

Carpetbagger wrote:

... A HOA is not an agent of the government and does not have to respect your constitutional rights. Additionally, you have a contractual agreement with the HOA to abide by their rules.

Click to expand...

I would bet this would not stand up court and I would also bet that you could go about your daily affairs, carrying whatever weapons you wish without any worries of your rights being intruded upon by any HOA.

Let me put it this way. Suppose a neighbor in my development saw me carrying my AR15 and several other "scary" weapons out to my truck with a load of ammunition to boot, and complained to the HOA. Now let's say the HOA visited me with a letter demanding I not act in this matter again. So you think for one minute that I would follow the dictates of that demand? Hell, more than likely I would be of the mind to answer my door with several guns in hand and strapped to my side to send a message to these Nazis that their presence on my property is no longer welcome and it would be in their distinct interests to vacate immediately.

Personally I can't stand the bastards.. it's the Southern in me.

Click to expand...

It all depends on what you agreed to in the HOA agreement and what the state law is. In many states, if you violate the covenants the HOA can fine you, slap a lien on your house if you don't pay the fine, and force a sale of your house to satisfy the lien.

If you feel that strongly about those Nazis, don't buy a house in a subdivision with a HOA.

Click to expand...

I live in an HOA community, I have served on the HOA BOD, and, I OC and CC everyday. I have also been told of many robberies, shootings, etc. by that same HOA. I wish the HOA would restrict me from the means to protect myself. I definitely would have heartburn with that!!

I would be curious to know if there are roving patrols, armed guards, andCCTVs in that gated community (not that it will keep you safe). Because, if that HOA passed that rule to prevent self defense, they should have no problem with civil suits that could arise if something tragic happens to anyone in that community!!

2nd Amendment......Use it........Or, lose it!!:X

Click to expand...

Let's just say for argument's sake that some HOA did have a covenent that prohibited the carrying of firearms within the confines of the community except in cases where they were being transported to a shop, a range, or a hunt. In such a case were I to live in this community, I would test the hell out of this "reg" and drive their butts crazy. And there's not a damned thing they could do about it because they have no power of law or authority. And my Constitutional rights supersede their "regs". Suppose I got maybe 50 or 60 of my neighbors together to walk the streets of the community fully armed and fully visible? Do you think that anyone would complain? These are your neighbors.. you could make their life miserable.

With the exception of family and friends, a man who cares or worries about what others say of or about him is truly a sorry example of a man.

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Hell yeah, they would complain. It's one thing to OC for a reason (self protection); it's another thing to OC to make a point ("drive their butts crazy" - your words). What else can they do other than complain?

I don't believe (in this scenario) HOA rules can supersede a Preempt State law (I could be wrong). It just doesn't seem right to me. Maybe someone who is an expert can set us straight.

2nd Amendment........Use it.........Or, lose it!!:X

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I don't believe (in this scenario) HOA rules can supersede a Preempt State law (I could be wrong). It just doesn't seem right to me. Maybe someone who is an expert can set us straight.

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I am definitely not an expert in this area of the law, but HOA rules cansupercede state law and the Constitution because you have contractually agreed to abide by the rules. And you have contractually agreed to the penalties for violating the rules, including fines, liens, and forced sale of your home.

For example, the government cannot prohibit you from flying a flag, but your HOA can. See the Virginia Property Owners’ Association Act that states: “The Association disclosure packet shall include...A statement setting forth any restriction, limitation, or prohibition on the right of a lot owner to display any flag on the owner’s lot including, but not limited to reasonable restrictions as to the size, place and manner of placement or display of such flag and the installation of any flagpole or similar structure necessary to display such flag.” (http://webapp.dpor.state.va.us/faqs/o_flags.htm)

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Carpetbagger wrote:

I don't believe (in this scenario) HOA rules can supersede a Preempt State law (I could be wrong). It just doesn't seem right to me. Maybe someone who is an expert can set us straight.

Click to expand...

I am definitely not an expert in this area of the law, but HOA rules cansupercede state law and the Constitution because you have contractually agreed to abide by the rules. And you have contractually agreed to the penalties for violating the rules, including fines, liens, and forced sale of your home.

For example, the government cannot prohibit you from flying a flag, but your HOA can. See the Virginia Property Owners’ Association Act that states: “The Association disclosure packet shall include...A statement setting forth any restriction, limitation, or prohibition on the right of a lot owner to display any flag on the owner’s lot including, but not limited to reasonable restrictions as to the size, place and manner of placement or display of such flag and the installation of any flagpole or similar structure necessary to display such flag.” (http://webapp.dpor.state.va.us/faqs/o_flags.htm)

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So, I would be right when it comes to my civil law suit statement when it comes to those rules impeding self protection, right?!?

2nd Amendment........Use it..........Or, lose it!!:X

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I live in a sub - division of private homeswith an HOA, I OC all day every day. Most of my neighbors don't even give me a second look, they just say hello and go about thier business. There are a few neighbors that give me a strange look from time to time, but no complaints as yet. One thing that I have found that OCing on your property has a tendancy to keep salesman away from your home after they have seen that you are carrying a weapon. :lol: