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Thread: Private Property - HOA group in San Diego

  1. #1
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    I'm a new member here but have carried open and concealed previously depending upon whether I'm hunting or camping or whatever.

    My question regards open carry on private property that is covered by my Homeowners' Association.

    Can I open carry if I own a home on the property? It seems that if I own a home on the property it is MY property and being private I should be able to. I have not yet broached the question as I know it would scare some of the other owners. I'm keeping it to myself for now. Trying to be smart about it.

    They have no published rules regarding firearms and no signage. Nobody has attempted open carry here but recently a kid was caught with a airsoft rifle and they are up in arms about it. They want to write in a rule that outright bans firearms and bb guns,etc. A blanket ban.

    I wrote to one board member already explaining that he should be careful in banning anything yet because of legal issues and the 2nd Amendment. I'm going to follow up but I am trying to be very careful in my approach, my attitude and my behavior.

    We have been having a very difficult time with trespassers using the pool and lake areas so I've often thought about open carry while trying to get these people out of here just as a measure of authority / visual intimidation.

    So far I have not needed to because I'm 6'4" and 250 LBS. Nobody has laid a hand on me but I wonder when some jerk may try to take me on. I have a spine problem so I'm not a spring chicken any more.

    Anyone aware of laws regarding commonly held property?

    Thanks in advance and keep up the good work. I'll try to attend the next meet here in San Diego.

    Greg




  2. #2
    Regular Member mjones's Avatar
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    sumyungguy wrote:
    I'm a new member here but have carried open and concealed previously depending upon whether I'm hunting or camping or whatever.

    My question regards open carry on private property that is covered by my Homeowners' Association.

    Can I open carry if I own a home on the property? It seems that if I own a home on the property it is MY property and being private I should be able to. I have not yet broached the question as I know it would scare some of the other owners. I'm keeping it to myself for now. Trying to be smart about it.
    Anyone legally permissable to be in posession of a gun may open carry in the common areas (regardless of ownership). {PC 12025}

    If you are in an unincorporated area with no local restriction on the discharge of firearms the weapon may be loaded. {PC 12031}

    Permissability with regard to the Home Owners Association is a grey area. In my opinion HOA regulations are only binding according to the methodology laid out with the Covenants & Restrictions attached to the title of your home. I'm not even remotely an expert in this area, but as I understand it there are two primary distinctions of property ownership. One is 'common areas' and the other 'exclusive use areas'. The first are likely things suchas public gardens, roads, swimming pools, tennis courts, etc. The latter is typically everything which you have fenced-in...possibly your backyard but definately inside your home.

    Inside your home, the HOA can kiss your proverbial rearend...in the common areas it depends...

    As I understand it the HOA regs cannot place limitations unless they enforce them uniformly...aka "You must submit for approval the color you want to paint your house" - if Billy-Joe Bob paints his house without submition... and noone cares, you are now free to pain your house Pumpkin Orange.

    Another aspect is that they cannot conflict with codified permissable acts. One that comes to mind is legislation with regard to the 'right' to receive Of The Air Television broadcasts using an external antenna; the 'right' to us a small-diameter dish to receive Sattelite Television, etc

    Is unloaded open carry codifed? ...my opinion of 12025 is that the Penal Code specifically allows 'the carrying of a concealable weapon in an unconcealed manner'

    HOA property is also 'private' property, but current cases and past case-law make it unclear right now if that is a clear exemption from the Gun Free School Zone act {PC 626.9}

  3. #3
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    HOAs baffle me.

    I used to work for one, and it seemed to me they could make any rule they want, as long as it's equally enforced.

    For example, they had a provision prohibiting leaving your garage door open for more than 10 minutes between sunset and sunrise. This was to prevent people from leaving the door open about 1 foot above the ground, which people wanted to do to cool off their garages in the Arizona heat.

    There was also no parking permitted on the street or in driveways after 10:00 PM, so if you had after-hours visitors they had to park off-site and walk in (this was a 5,000+ home gated community, so that could be quite a hike).

    So, I imagine that a HOA might be able to get away with much more in the way of personal control.

    IMO, consult an attorney who specializes in HOAs.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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  4. #4
    Regular Member stuckinchico's Avatar
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    I personally despise them so I make sure that I am not moving into one.... I have lived in one before and basically told them to go pound sand.... Up to you


    Personally this is what Id be posting though[img]file:///Users/justinocamb/Desktop/Fun%20Pics/n1071693442_371605_907.jpg[/img]

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    Thanks a bunch. The HOA here is actually pretty good. I'm in a good relationship with them.

    They recently grabbed an airsoft rifle from a kid that lives here and they freaked. You know - the old ladies with dogs and cats that walk their dogs in baby carriages. They thought it was an actual Rifle, called the cops, everything. Now they want to ban all BB guns, air rifles, etc.. I've advised them that airsoft are not "Air Rifles" but they are not very aware of gun laws, especially air soft stuff. But all that airsoft stuff is in a state of flux in California. Laws to ban them on public grounds are on the way I'm sure.

    These things can quickly get way out of hand so I'm trying to help guide them. Just don't want to see a ban on anything.

    We get alot of trespassers and I for one would LOVE to open carry as I roam around booting them off the property but I am NOT going to open carry and create a rift between the HOA and myself. I totally understand the can of worms it could open. I guess I'm just fearful of a stupid ban on airsoft "devices" becoming a full blown ban on anything and everything like BB guns. I personally have a cross bow ready to use if those darned ducks come crappin' on my driveway. So far they have not ended up on the dinner plate.

    I understand that the 2nd Amendment trumps the HOA but I'm not sure they see it that way.

    Ok, I type alot, eh?

    I'll keep an eye out for related posts. Thanks a million for your input and have a nice day.



  6. #6
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    Well the HOA has now sent out a letter stating basically that "All firearms are banned on common areas". No Pellet guns, no BB guns, etc.

    I would like to send them a letter in response letting them know that I exercise my rights and that I will at times carry openly, lawfully, and that their letter is pre-empted
    by my Constitutional rights. Not sure how to word it.

    The other angle I would like to explore is as follows; I am a part owner of this private property, and as such I am allowed to carry LOADED if I desire.

    I would not carry loaded unless something of an emergency situation came up but I would carry open unloaded with my mags on my hip.

    I have advised at least one of the board members via E-mail that what they are doing is a potential violation of the 2nd Amendment. I let him know that some people within the community care about their rights and that they will not stand to have them trampled on.

    I do have lawyer contacts but unfortunately they are tough to consult.

    So I would like to draft a letter putting them on notice that I am aware of their attempt to infringe upon my rights under the Constitution of the United State of America and that if I wish I WILL carry openly as allowed to, under the law, if I wish.

    I believe that by delivering such a letter I am serving them notice legally. To do nothing is to accept what they are attempting to do. Does that make sense? I think it does.

    I have misplaced the letter but am going to obtain a duplicate copy so I can post part of it here.

    To be continued......

  7. #7
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    sumyungguy wrote:
    Well the HOA has now sent out a letter stating basically that "All firearms are banned on common areas". No Pellet guns, no BB guns, etc.

    I would like to send them a letter in response letting them know that I exercise my rights and that I will at times carry openly, lawfully, and that their letter is pre-empted
    by my Constitutional rights. Not sure how to word it.

    The other angle I would like to explore is as follows; I am a part owner of this private property, and as such I am allowed to carry LOADED if I desire.

    I would not carry loaded unless something of an emergency situation came up but I would carry open unloaded with my mags on my hip.

    I have advised at least one of the board members via E-mail that what they are doing is a potential violation of the 2nd Amendment. I let him know that some people within the community care about their rights and that they will not stand to have them trampled on.

    I do have lawyer contacts but unfortunately they are tough to consult.

    So I would like to draft a letter putting them on notice that I am aware of their attempt to infringe upon my rights under the Constitution of the United State of America and that if I wish I WILL carry openly as allowed to, under the law, if I wish.

    I believe that by delivering such a letter I am serving them notice legally. To do nothing is to accept what they are attempting to do. Does that make sense? I think it does.

    I have misplaced the letter but am going to obtain a duplicate copy so I can post part of it here.

    To be continued......
    Unfortunately private citizens and private entities are not restricted by the Bill of Rights. The Constitution is in place to restrict the authority of the government. Only government agents can "violate" your constitutional rights.

    Also, you need to read your home owners association agreement that you signed. I'll bet you agreed to abide by what ever hair-brained rules they chose to implement.


  8. #8
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    Actually I've never signed anything related to the HOA. My wife owned the house before we got married.

    I moved in and well, that's that as they say.

    Here is the text.



    The attached proposed new rule is being presented to the membership for 30-day review period pursuant to California Civil Code ยง1357.130.

    Please take a moment to review the proposed new rule. If you have any questions or concerns regarding the proposed new rule please submit them in writing

    to the Board of Directors care of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

    Unless you are notified otherwise, the proposed new rule shall be adapted and take effect December 2, 2009 following a 30-day review period.

    New Rule to be listed in the _ _ _ _ _ _ _ _ _ Rules & Regulations Page _, section _ _ _ _ _ _.
    _. The following items are banned from use or possession within the _ _ _ _ _ _ _ _ _ Recreational and Common areas: All guns, toys and devices that

    discharge solid bullets or pellets, all fishing rods, poles, line or objects with hooks for fishing, all sling shots, bow & arrow or devices that can

    project objects more than 10 feet.

    Addition to Monetary Fines and Remedies Schedule to be listed in the _ _ _ _ _ _ _ _ _ _ Rules & Regulations Page 11.
    All Other Sections: First Occurrence - $_ _
    Continued Non-Compliance - $_ _ _/month
    or revoke Recreational and/or Common Area privileges.




    I would really like to write them a letter that explains that I am not going to abide by an unlawful and arbitrary rule so that I can have that written disagreement fully documented in case of dispute.

    I do not want this to go into effect without disagreeing with it. That's agreement by doing nothing. Know what I mean?

    Sorry to keep beating a dead horse.

  9. #9
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    sumyungguy wrote:
    Actually I've never signed anything related to the HOA. My wife owned the house before we got married.
    I would really like to write them a letter that explains that I am not going to abide by an unlawful and arbitrary rule so that I can have that written disagreement fully documented in case of dispute.

    I do not want this to go into effect without disagreeing with it. That's agreement by doing nothing. Know what I mean?

    Sorry to keep beating a dead horse.

    Regardless of if you signed anything or not, your wife did, and in HOAs there are binding agreements that are made when someone moves in to one.

    Disagreeing with them is great, I urge you to speak up, and rally support among your neighbors, you might be able to get the HOA board to reconsider/overturn it. Bear in mind though, if the rule goes into effect, and you violate it, you can be forced to move/sell the house. Check the contract that was signed, it's most likely in there, as it is for every HOA I've had the displeasure of encountering. Yes, they can legally force you out of your own home, thanks to the legally binding agreements made upon move in, this is no joke, I've seen it done. Or force your wife out, if she has you living there breaking HOA rules and the house is in her name, anyway. Or fine her into oblivion, depending on how the contract works out, but if you enjoy paying 100 bucks or more each time you step outside OC, while risking your home, that's your call.

    I suggest you take a good hard look at that contract that she signed. It's all right there in the fine print. It's not unlawful for them to enforce anything they so choose, should the homeowner have agreed to abide by the rules set forth by the HOA. If your wife misplaced her copy, I'm sure the HOA board has one on file that they could provide to her.



    PS. They can make an arbitrary rule that everyone must wear polka dot hats on tuesday, and it's legally enforcable (as in HOA issued fines that they can sue for, and win, as an example), due to the contract. Arbitrary is what HOAs are all about. Run for the HOA board next time they have an election, or at least attend meetings, if you want some sort of a say in what's going on with your own home.


  10. #10
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    While HOAs do have a lot of power, the Legislature began restricting it several years ago. HOAs did not take the hint, and almost each year since there has been new regulation. The requirement of publicizing proposed rule changes was one of laws.

    Basically, any homeowner can sue the HOA for virtually any reason. In general, before you do so, you must request "Alternative Dispute Resolution" before doing so. You should submit a request "to meet and confer or other ADR" regarding the proposed rule.



    HOAs are now required to provide due process and be REASONABLE in their actions (another of the new laws). If you follow procedure and they don't, you can win on that even if the proposed rule survives.

    The whole thing seems like an over-reaction. A reasonable rule would apply to those under 18 and prohibit target practice or use in a manner which disturbs the peace of others... which is probably all they want to prohibit anyhow.



    Maybe they will see reasonableness of your argument. If not, maybe they will see how much time, trouble and potential litigation they face if they don't at least follow the rules of making rules.

    btw, what do your governing documents say about notice of meetings where rule changes are going to be proposed? Did they follow procedure there? Contact me at dan911pi@yahoo.com if you want more info.



    Good luck!

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