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Thread: Lease / contract

  1. #1
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    Question Lease / contract

    Ok Ok..let me be a little more clear on my post.

    If you are a tenant and you have to sign a lease, but you have obtained a gun permit to carry...can the landlord put a clause in the lease that they do not want guns on or in their property that they are renting to that tenant or does this tenant have the right to still store it in their home and ask their landlord to remove that clause?
    Last edited by Alex.EastHartford.; 08-14-2010 at 11:46 PM.

  2. #2
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    No. You have a legal right to possess a firearm in your home. That clause in the lease contract would be struck down in court.


    EDIT: I believe you meant either "can he prohibit guns" or "include a no-guns clause". You may want to read your post and edit it.
    Last edited by Hef; 08-14-2010 at 08:04 PM.

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    Quote Originally Posted by Hef View Post
    No. You have a legal right to possess a firearm in your home. That clause in the lease contract would be struck down in court.


    EDIT: I believe you meant either "can he prohibit guns" or "include a no-guns clause". You may want to read your post and edit it.

    Cite, please.

    (5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

    http://forum.opencarry.org/forums/misc.php?do=showrules
    Last edited by Citizen; 08-14-2010 at 08:20 PM.

  4. #4
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    Quote Originally Posted by Hef View Post
    SNIP I believe you meant either "can he prohibit guns" or "include a no-guns clause". You may want to read your post and edit it.
    Perhaps he did. But, one can actually make sense of it as written, if you work at it a little. And, keep a sense of humor about you.

    First, notice the prefatory clause: "If you rent a house that the owner owns..." That must be the sort of ownership that is distinct from a house that the owner does not own. The owner must actually own a different house. Otherwise, he would just be "the owner."

    Now, "...rent a house..." could go two ways. You could be the tenant. Or, you could be sub-leasing it to someone else.

    And, just the way the second clause is written, it makes more sense if one assumes the person posing the question is sub-letting the home to someone else, and is a Brady Buncher. And, wants to know if the owner can prevent the lessee from prohibiting guns in the sub-lease or in the dwelling.

    But, only if the owner actually owns this particular dwelling. If he is the kind of owner who only owns a different dwelling, then the whole thing is back up in the air.



    (Sorry, Alex. I couldn't help it. Nothing personal.)

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    Jjj
    Last edited by RR917; 04-06-2016 at 08:40 AM.

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    Is a gun restriction enforceable or not? That is the question.

    On one hand we have a landlord stating that it's one of the terms of the lease and must be complied with. No legal cites provided to support such a statement.

    On the other hand we have a statement to the contrary: "You have a legal right to possess a firearm in your home. That clause in the lease contract would be struck down in court." Again, no legal cites provided to support such a statement.

    Much may have changed since the Heller and McDonald rulings concerning such, since we are now talking about a fundamental civil right. So, the question now becomes, "Can a landlord, through a lease, restrict the individual exercise of a fundamental civil right?"

    Civil contracts, and a lease is such an instrument, have been voided, in whole or in part, or have been ruled unenforceable, if such, or part of such, is an affront to societal norms, or words to that effect. Prohibiting a tenant from the ability to defend life inside the tenant's residence might well be an unenforceable/illegal restriction. Several public housing agencies have or are being sued for having such gun restrictions in their leases. Of course, here we have a government entity attempting to apply a restriction, not a private person. But, the concept may well be the same.

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    Depends on the jurisdiction, as usual.

    Hef may be referring to a SC Statute (damn, the SC Statehouse statutes site is down) that permits possession where the possessor has paid the accommodations tax. I would expect other states to have similar considerations in their law, either protecting the lesee or the lessor.

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    Cite? You want a cite?

    Go here: http://www.cga.ct.gov/2009/pub/Chap830.htm

    Then go to Section 47a-3 and 47a-4. Read it, for what it's worth.

    Apparently, if landlord and tenant agree to the terms and you cannot find a law prohibiting the term you can put it in a clause of the lease and sign indicating you agree to it.

    I'm unable to find anything that says a landlord can not put a no-guns clause in the lease if the landlord is not a governmental entity. Cites for the case of the landlord being a governmental entity abound, and since Heller and McDonald are going to proliferate at an astounding rate for the next few years.

    stay safe.

    I really should read all the way through stuff. Section 47a-9 says a landlord can create a rule "only if (1) the purpose of the rule or regulation is to promote the convenience, safety or welfare of the tenants in the premises...." Again, following Heller and McDonald I think it's going to be hard to sustain a no-guns rule on this ground.

    Now you folks go read and find all the other exclusions & exceptions I've missed.
    Last edited by skidmark; 08-15-2010 at 09:29 AM. Reason: ETA omitted section. I saw it but the fingers refused to type it.

  9. #9
    Regular Member KIX's Avatar
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    They also tend to put a lot of stuff that isn't legal in a lease.

    My old condo association tried to tell me to take down my satellite dish - that was up for over 5 years when nobody knew about it!

    I refused, because there is federal law that says they need to accommodate cable company competition.... this went on for two years, I was given tons of fines..... in the end, they had to drop it all after advice from their council.

    After that..... they still kept the "no dish" clause in the lease agreement.

    Actually, more of a by-laws...... but the exact same thing happened to a good friend at his apartment as well (he followed what I did).

    I wonder how much stuff is in a lease that isn't even legally enforceable?

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    What of municipal housing etc? I believe, but may well be mistaken, that handguns are not permitted in municipal houseing projects here.

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    Regular Member KIX's Avatar
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    I don't recall the final outcome..... it might still be going on, but there was a big case in Deleware on that topic.

    Specifically government housing and a barrier of second amendment rights for those with a lower income.

    Jonathan

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    Quote Originally Posted by KIX View Post
    ... a barrier of second amendment rights for those with a lower income. Jonathan
    Voluntarily accepted in exchange for accommodations without adequate consideration.

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    Quote Originally Posted by KIX View Post
    I don't recall the final outcome..... it might still be going on, but there was a big case in Deleware on that topic.

    Specifically government housing and a barrier of second amendment rights for those with a lower income.

    Jonathan
    Not to mention California. I believe San Francisco more specifically. That may be federal though and I believe the highest court it reached said that they couldn't prohibit firearms because it was a federal housing project and it's tenants were under the protection of Heller. At the time, McDonald hadn't been decided, but that's more or less irrelevant.

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    Quote Originally Posted by Statkowski View Post
    Is a gun restriction enforceable or not? That is the question.
    Much may have changed since the Heller and McDonald rulings concerning such, since we are now talking about a fundamental civil right. So, the question now becomes, "Can a landlord, through a lease, restrict the individual exercise of a fundamental civil right?"
    A court will most likely uphold such a lease restriction. Contract law applies - not constitutional law. You can bargain away any right you wish (absent, of course, violation of certain laws; e.g., you cannot bargain away your right to life and contract with someone to kill you - that would be conspiracy to commit murder). When you negotiate terms of a lease and agree to abide by its terms in exchange for possession of the property, you have established what courts call "consideration" which, roughly speaking, is a bargained-for benefit to the parties. Generally, when consideration is present in an agreement, a binding contract exists. Accordingly, the responsibilities, including firearm restrictions, bind the lessee while the benefits of that contract - possession of the property - inure to the lessee.

    Constitutional law is not an issue here. The Constitution (at least the US Constitution - I do not speak to those of all 50 states), exists to limit the powers of the federal government, not to put checks on individuals rights of contract. For example, the first amendment gaurantees that Congress may not pass a law establishing a religion. It does not, however, restrict, for example, a home owners association from establishing a bylaw that everyone who is a member must be a practicing Jew or Christian or Muslim. The Constitution does not restrict private actions at all - only those of the federal government.*

    The cases you cited deal with the powers of government to restrict individual liberties. While we may wish and think of possession of a firearm to be a "fundamental right," the Constitution neither protects such rights against another private individual nor retricts your right to bargain them away.

    * To be complete, the Constitution does restrict state governments as well - e.g., preemption of state law through the supremecy clause, the commerce clause, and the contracts clause. It does not, however, restrict individuals.

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    Rules vs Ordinances vs Laws?

    Quote Originally Posted by GunTotingLawyer View Post
    A court will most likely uphold such a lease restriction. Contract law applies - not constitutional law. You can bargain away any right you wish (absent, of course, violation of certain laws; e.g., you cannot bargain away your right to life and contract with someone to kill you - that would be conspiracy to commit murder). When you negotiate terms of a lease and agree to abide by its terms in exchange for possession of the property, you have established what courts call "consideration" which, roughly speaking, is a bargained-for benefit to the parties. Generally, when consideration is present in an agreement, a binding contract exists. Accordingly, the responsibilities, including firearm restrictions, bind the lessee while the benefits of that contract - possession of the property - inure to the lessee.

    Constitutional law is not an issue here. The Constitution (at least the US Constitution - I do not speak to those of all 50 states), exists to limit the powers of the federal government, not to put checks on individuals rights of contract. For example, the first amendment gaurantees that Congress may not pass a law establishing a religion. It does not, however, restrict, for example, a home owners association from establishing a bylaw that everyone who is a member must be a practicing Jew or Christian or Muslim. The Constitution does not restrict private actions at all - only those of the federal government.*

    The cases you cited deal with the powers of government to restrict individual liberties. While we may wish and think of possession of a firearm to be a "fundamental right," the Constitution neither protects such rights against another private individual nor retricts your right to bargain them away.

    * To be complete, the Constitution does restrict state governments as well - e.g., preemption of state law through the supremecy clause, the commerce clause, and the contracts clause. It does not, however, restrict individuals.
    One question that comes to mind is what happens if you break a rule like the "no guns in this apartment complex" ones? Obviously they could terminate your lease if that is what the contract specifies, and possibly other kinds of civil liability would ensue. But would there be criminal issues, as well? Which crime could someone be charged with, if any?

    I happen to know that the Bridgeport public housing authorities are preparing to, or perhaps already have, take action against a "licensed" gun owner in a Bridgeport public housing complex. The Executive Director's chilling words were "We can handle it". I wonder if this poor fellow will only lose his apartment, or also his guns. And I hope that if he does, the City of Bridgeport loses some money when he sues for a violation of his rights and wins in court.

    Is there a difference between a law and an ordinance? Or perhaps between a statute and an ordinance? For instance, New Britain bans concealed weapons. If someone with a CT permit to carry pistols and revolvers carried a concealed handgun into New Britain and a police officer there somehow found out, that person would probably be arrested. How would that person be charged? I am guessing it would not be a charge from the CT general statutes. Would the consequences possibly include jail time, confiscation of the gun, and a felony conviction? Or would it simply be a fine for an infraction, kind of like carrying when you leave your permit at home?

  16. #16
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    I own rental property. My attorney told me that I could put just about any arbitrary and capricious constraint in my lease I wanted to. As long as I didn't discriminate on the basis of race, sexual orientation, etc.

    While I'm a gun rights person, I'm also a personal property rights person. Based on my discussions with my attorney I could put a no-guns clause in my lease.

    If you sign the lease you are agreeing to this clause.

    As it is, my lease has a no signage clause, in case someone wants to run a customary home based business while leasing from me. Signage is protected free speech so its actually a pretty good parallel to the gun thing.


    If you don't like it, you could go somewhere else. You are not compelled to live in my house. Realize also that the Bill of Rights constrains government. It does not constrain private entities. For example, there is no First Amendment right to free speech on this board.

    It is bought and paid for by someone. They set the rules. If you don't like it, you can go somewhere else or start your own open carry web site.

    Don

  17. #17
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    Quote Originally Posted by dcmdon View Post
    I'm also a personal property rights person.
    My interpretation of personal property rights includes making sure that on my personal property that other people are not kept from defending their personal property or life.

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    Good thing my landlord owns more guns than me
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    Andy
    shhhhh, librarian packing"

  19. #19
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    Quote Originally Posted by Ange View Post
    Good thing my landlord owns more guns than me
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    Andy
    Sounds like a good thing to fix.

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