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Thread: Open Carry in an Apt Building

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    Yesterday afternoon I saw a guy coming out of the stairwell OCing in my Apt building. This was the first time I have actually seen someone OCing in Arlington, but this did get me thinking. Technically an Apt building is private property. So how does the law handle me as a renter open carrying? E.g. can the Apt building have me evicted etc? Can the apartment building prevent me from owning firearms?

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    Simple answer: The apartment complex has no right to deny you YOUR right to carry. I will let others elaborate, as I don't have specific code sections handy...



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    -C4- wrote:
    E.g. can the Apt building have me evicted etc? Can the apartment building prevent me from owning firearms?

    No and No -- At least not legally. You as the renter make the property yours while paid for (under lease / contract). Access to the property has to be public (lets say) and not private. To get to your place (what you have paid for) you need to travel a hallway. Technically you probably rent the hallway as well. Of course there is a more legal explaination I am sure. That I will leave to the lawyers as I am not one.



    DC

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    I'd recommend reading your lease and see what it says about firearms, if anything. IANAL, and I know VERY little about the contract laws in VA, but I'd be inclined to think that if it's not prohibited in your lease then you should be fine. Although it's up to you if you want to risk that or not.

    Last year I lived at a place on a month-to-month lease, and even though firearms were not mentioned in the lease I stayed on the don't ask, don't tell program.

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    It seems that any anti-gun apartment rules would have to be spelled out clearly in the lease and made clear with anti-gun signs all over the place. Otherwiseopen carrying is legal inapartmentareas.

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    You are renting the apartment and not the property.

    Therefore... you can carry all you like in your apartment but they could prohibit you from carrying on their property. The best they could do is have cause toterminate your lease.

    I know of property that prohibits the renters from parking on the private roadway. They MUST park in their driveway and there is space for only two cars. Because the renter has no expressed rights to the roadway on the property... they can and are towed when they do.

    Same goes for Homeowner associations. They own the roads and community property. They can ban you from driving on the roads they own. They could also ban you from being on their property with a gun.

    It all comes down to ownership. If YOU do not own the property.... you have NO right to it.You would have to obey the wishes of the true property owner.

    You pay taxes and thestate owns the roadways paid for by your tax dollars. This does not give you any permission to drive your car on the roadway just because you pay taxes. You pay an additionalfee byregistering your car and this allows the car to be driven on the roadway.

    Point being.... just because you pay for one thing does not mean your automatically entitled to anything more.

    It is expected that you will have free passage to your rented space. Be it a hallway or roadway. This does not mean you have any rights to it. The property owner cannot BLOCK you from getting to your front door. They can block you from driving or carrying dangerous items.

    This is a matter that would then need to be heard in court. The lease or association contract would come into play.

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    LEO 229 wrote:
    You are renting the apartment and not the property.

    Therefore...* you can carry all you like in your apartment but they could prohibit you from carrying on their property. The best they could do is have cause to*terminate your lease.

    I know of property that prohibits the renters from parking on the private roadway. They MUST park in their driveway and there is space for only two cars. Because the renter has no expressed rights to the roadway on the property...* they can and are towed when they do.

    Same goes for Homeowner associations. They own the roads and community property. They can ban you from driving on the roads they own. They could also ban you from being on their property with a gun.

    It all comes down to ownership. If YOU do not own the property.... you have NO right to it.*You would have to obey the wishes of the true property owner.

    You pay taxes and the*state owns the roadways paid for by your tax dollars. This does not give you any permission to drive your car on the roadway just because you pay taxes. You pay an additional*fee by*registering your car and this allows the car to be driven on the roadway.

    Point being....* just because you pay for one thing does not mean your automatically entitled to anything more.

    It is expected that you will have free passage to your rented space. Be it a hallway or roadway. This does not mean you have any rights to it. The property owner cannot BLOCK you from getting to your front door. They can block you from driving or carrying dangerous items.

    This is a matter that would then need to be heard in court. The lease or association contract would come into play.

    It is my understanding that if the lease does not have any clause prohibiting firearms, they can not prohibit it without terminating your contract. You make it sound like the owner can make rules up as time goes... but legally, I don't think that is true. Infact, if the owner kicked a renter off their property for carrying a gun (when the contract did not prohibt it), I suspect they could be sued.

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    I am rather curious about this myself. I own a condo in a mixed property (both renters and owners). I have open carried in the common areas (breezeways, parking area etc) with no incidents of yet. However, I was curious if the HOA could dictate no-OC in the common area.

    Now I have heard that you are legally allowed to carry to your car, but this is subjective at best since it is virtually impossible to define. I could park on the other side of my complex and would have to walk across the entire property to get to my car.

    That aside, I would argue that in a "shared" living environment, common areas are public and therefore OC (along with other rights) could not be restricted. Not to mention that an HOA is a form of local gov't that could not pre-empt state laws. Also, , I pay condo fees which means I do own a "share" of the complex.

    I would like clarification if anyone knows of laws or precident regarding this.


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    DDrake wrote:
    It is my understanding that if the lease does not have any clause prohibiting firearms, they can not prohibit it without terminating your contract. You make it sound like the owner can make rules up as time goes... but legally, I don't think that is true. Infact, if the owner kicked a renter off their property for carrying a gun (when the contract did not prohibt it), I suspect they could be sued.
    It all comes down to how the lease was written.

    We all know that no legal document can possibly cover EVRYTHING that can happen.

    But there is always that little catch all phrase that says... "The property owner/Landlord/Management office/ ect... reserves the right to......"

    But yes... the rules should be spelled out in the lease ahead of time. But the contract most likely says the leasing office can terminate the contract at any time and that is why I mentioned that this was about all they could do.

    So essentially they can make the rules up as they go to a degree. And this is why you would need to take them to court.They can amend the contract and if you refuse... They will just terminate your lease.

    Has your credit card company or insurance company ever sent you modifications to your policy? They changed the original rules. You do not like it?? Cancel your account!!

    We have to remember that just because it is NOT in the lease.... does not mean you CAN do something either.

    The lease does not prohibit you from throwinga party in the rental office.... But that does not mean you can.

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    LEO 229 wrote:
    DDrake wrote:
    It is my understanding that if the lease does not have any clause prohibiting firearms, they can not prohibit it without terminating your contract. You make it sound like the owner can make rules up as time goes... but legally, I don't think that is true. Infact, if the owner kicked a renter off their property for carrying a gun (when the contract did not prohibt it), I suspect they could be sued.
    It all comes down to how the lease was written.

    We all know that no legal document can possibly cover EVRYTHING that can happen.

    But there is always that little catch all phrase that says... "The property owner/Landlord/Management office/ ect... reserves the right to......"

    But yes... the rules should be spelled out in the lease ahead of time. But the contract most likely says the leasing office can terminate the contract at any time and that is why I mentioned that this was about all they could do.

    So essentially they can make the rules up as they go to a degree. And this is why you would need to take them to court.They can amend the contract and if you refuse... They will just terminate your lease.

    Has your credit card company or insurance company ever sent you modifications to your policy? They changed the original rules. You do not like it?? Cancel your account!!

    We have to remember that just because it is NOT in the lease.... does not mean you CAN do something either.

    The lease does not prohibit you from throwinga party in the rental office.... But that does not mean you can.
    Girlfriend manages at 642 unit property in herndon. She said they legally can not prevent someone from OC/CC or owning a firearm on their property. Even if they say "reserves the right to.." they can't restrict your second Amendment

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    Code of Virginia says:

    § 8.2A-108. Unconscionability.

    (1) If the court as a matter of law finds a lease contract or any clause of a lease contract to have been unconscionable at the time it was made, the court may refuse to enforce the lease contract, or it may enforce the remainder of the lease contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

    (2) With respect to a consumer lease, if the court as a matter of law finds that a lease contract or any clause of a lease contract has been induced by unconscionable conduct or that unconscionable conduct has occurred in the collection of a claim arising from a lease contract, the court may grant appropriate relief.

    (3) Before making a finding of unconscionability under subsection (1) or (2) of this section, the court, on its own motion or that of a party, shall afford the parties a reasonable opportunity to present evidence as to the setting, purpose, and effect of the lease contract or clause thereof, or of the conduct.

    (4) In an action in which the lessee claims unconscionability with respect to a consumer lease:

    (a) If the court finds unconscionability under subsection (1) or (2) of this section, the court shall award reasonable attorney's fees to the lessee.

    (b) If the court does not find unconscionability and the lessee claiming unconscionability has brought or maintained an action he or she knew to be groundless, the court shall award reasonable attorney's fees to the party against whom the claim is made.

    (c) In determining attorney's fees, the amount of the recovery on behalf of the claimant under subsections (1) and (2) of this section is not controlling.

    (1991, c. 536.)



    Section 1 is where you want to pay attention. In an apartment complex (anything with more than a single apartment) you are leasing not only the dwelling area, but the "use and enjoyment" (a legal term - look it up) of the common areas. This could include, but is not limited to, such areas as parking, trash disposal, sidewalks, recreational or greenspace areas (playgrounds, lawns, pools, etc.) and front or back "yards". Your rights to usethose areas, except as the landlord may limit them so as to ensure the equitable (but not necessarily equal) use by all tenants, is as if you were the owner of the property. Thus, the landlord may not restrict you from an activity that poses no risk of damage to his property. Keeping a pet is a risk of damage - he can either prohibit it or charge you a security deposit against possible damages. Changing your car's oil or doing other automotive repairs on his property is a risk of damage and he can p[rohibit it. Prohibiting you from an otherwise lawful act that poses no risk of damage is unconscionable.

    Now you know. If you want to know more, ask yopur landlord for the Landlord-Tenant Act booklet that he is supposed to give you, or go to your local General District Court Clerk's office to get a copy.

    stay safe.

    skidmark
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    It has already been decided in the federal courts. There was a case, I believe it was in one of the major northern midwest cities in which a housing authority tried to bar firearms from the housing complex to help reduce crime. They attempted to base this on those living there were receiving public assistance and therefore could be subject to those regulations. It was declared unconstitutional and that those living in the complex had the right to posses firearms for protection the same as anyone else whether the housing was public or private.
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    You pay taxes and thestate owns the roadways paid for by your tax dollars. This does not give you any permission to drive your car on the roadway just because you pay taxes. You pay an additionalfee byregistering your car and this allows the car to be driven on the roadway

    Actually the state has nolegal grounds to restrict a person's lawful traveling.

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    Didn't Clinton and his group try this up North in public housing? I thought the courts said the tenants could not be denide their rights, 2nd or any of them. I can't find the exact basis to this argument at the moment, it is just something I recall.

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    kerchaulk wrote:
    Didn't Clinton and his group try this up North in public housing? I thought the courts said the tenants could not be denide their rights, 2nd or any of them. I can't find the exact basis to this argument at the moment, it is just something I recall.
    Yes, it was in a Chicago housing project where there was a high crime rate. Clinton wanted to have unrestricted searches for weapons in the dwellings. When advised that this may not stand, he directed his attorney general (Janet Reno) to find a way around the law, and Constitution, to do this. As I understand, nothing came of this.



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    mobeewan wrote:
    It has already been decided in the federal courts. There was a case, I believe it was in one of the major northern midwest cities in which a housing authority tried to bar firearms from the housing complex to help reduce crime. They attempted to base this on those living there were receiving public assistance and therefore could be subject to those regulations. It was declared unconstitutional and that those living in the complex had the right to posses firearms for protection the same as anyone else whether the housing was public or private.
    Unfortunately, that case has nothing to do with the issue at hand.

    They tried to use the "no possession of firearms on federal property" laws based on federal $$ funding the housing (building paid for by .gov $$, Section * $$ paying rent, etc.). As was proper, the Supreme Court said a housing project is not federal property within the meaning of the laws regarding prohibition of firearms on same.

    stay safe.

    skidmark
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    Easy way to avoid it: Don't rent from a place that disallows firearms.

    I am as staunch of an advocate of property rights as I am of gun rights. A private business and private property owner has every right in the world to disallow whatever they want. You don't need to give them your business, why give them your hard earned dollar.

    Same goes for HOA's, ect. You knew what you were getting into. Now, if things change later on after the agreeement is made, you have a right to get pissed.

    Stay safe.

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    I believe that it is a principle of contract law that errors, as is an omission, are constructed against the interest of the party writing the contract.

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    Doug Huffman wrote:
    I believe that it is a principle of contract law that errors, as is an omission, are constructed against the interest of the party writing the contract.
    I think you are correct. If you signed the contract and it said nothing about firearms, they couldn't all of a sudden ban them without you signing a new contract.

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    SouthernBoy wrote:
    kerchaulk wrote:
    Didn't Clinton and his group try this up North in public housing? I thought the courts said the tenants could not be denied their rights, 2nd or any of them. I can't find the exact basis to this argument at the moment, it is just something I recall.
    Yes, it was in a Chicago housing project where there was a high crime rate. Clinton wanted to have unrestricted searches for weapons in the dwellings. When advised that this may not stand, he directed his attorney general (Janet Reno) to find a way around the law, and Constitution, to do this. As I understand, nothing came of this.
    Interestingly, it is already illegal in Illinois to have a firearm in a publicly owned facility without permission in the first place. Probably none of the nitwits involved in the fiasco knew this.
    (720 ILCS 5/21‑6) (from Ch. 38, par. 21‑6)
    Sec. 21‑6. Unauthorized Possession or Storage of Weapons.
    (a) Whoever possesses or stores any weapon enumerated in Section 33A‑1 in any building or on land supported in whole or in part with public funds or in any building on such land without prior written permission from the chief security officer for such land or building commits a Class A misdemeanor.
    (b) The chief security officer must grant any reasonable request for permission under paragraph (a).
    (Source: P.A. 89‑685, eff. 6‑1‑97.)

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    worrbaron wrote:
    You pay taxes and thestate owns the roadways paid for by your tax dollars. This does not give you any permission to drive your car on the roadway just because you pay taxes. You pay an additionalfee byregistering your car and this allows the car to be driven on the roadway

    Actually the state has nolegal grounds to restrict a person's lawful traveling.
    You mean in gereral and not using an automobile on a state road.....right?

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    LEO 229 wrote:
    worrbaron wrote:
    You pay taxes and thestate owns the roadways paid for by your tax dollars. This does not give you any permission to drive your car on the roadway just because you pay taxes. You pay an additionalfee byregistering your car and this allows the car to be driven on the roadway

    Actually the state has nolegal grounds to restrict a person's lawful traveling.
    You mean in gereral and not using an automobile on a state road.....right?
    Oh no...here we go.

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    -C4- wrote:
    Yesterday afternoon I saw a guy coming out of the stairwell OCing in my Apt building. This was the first time I have actually seen someone OCing in Arlington, but this did get me thinking. Technically an Apt building is private property. So how does the law handle me as a renter open carrying? E.g. can the Apt building have me evicted etc? Can the apartment building prevent me from owning firearms?
    IANAL, but please see VA 55-248.9 "Prohibited provisions in rental agreements."

    A. A rental agreement shall not contain provisions that the tenant:
    1. Agrees to waive or forego rights or remedies under this chapter;
    ... 6. Agrees as a condition of tenancy in public housing to a prohibition or restriction of any lawful possession of a firearm within individual dwelling units unless required by federal law or regulation; or
    ...

    B. A provision prohibited by subsection A included in a rental agreement is unenforceable. If a landlord brings an action to enforce any of the prohibited provisions, the tenant may recover actual damages sustained by him and reasonable attorney's fees.


    Ok, so reading that it doesn't appear to answer what remedies they have with respect to your OC/CC outside of a dwelling unit, but I think that makes it quite clear that provisions which prohibit lawful firearm posession in a dwelling unit are unenforcable. Building on that I think you could state that a prohibition on posessing a firearm in common access areas prevents ingress and egress with firearms which is an effective prohibition or restriction on the lawful possession of a firearm and therefore unenforcable.

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    stryth wrote:
    IANAL, but please see VA 55-248.9 "Prohibited provisions in rental agreements."

    A. A rental agreement shall not contain provisions that the tenant:
    1. Agrees to waive or forego rights or remedies under this chapter;
    ... 6. Agrees as a condition of tenancy in public housing to a prohibition or restriction of any lawful possession of a firearm within individual dwelling units unless required by federal law or regulation; or
    ...

    B. A provision prohibited by subsection A included in a rental agreement is unenforceable. If a landlord brings an action to enforce any of the prohibited provisions, the tenant may recover actual damages sustained by him and reasonable attorney's fees.


    Ok, so reading that it doesn't appear to answer what remedies they have with respect to your OC/CC outside of a dwelling unit, but I think that makes it quite clear that provisions which prohibit lawful firearm posession in a dwelling unit are unenforcable. Building on that I think you could state that a prohibition on posessing a firearm in common access areas prevents ingress and egress with firearms which is an effective prohibition or restriction on the lawful possession of a firearm and therefore unenforcable.
    Nice find!

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    ama-gi wrote:
    Oh no...here we go.
    55-248.9 ought'ta end it, but we'll see if OCD took his meds.

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