No one wants to read about the toddler in one of their buildings who is accidentally shot after coming across a loaded gun under the sofa cushion, a resident who shot himself while cleaning his pistol, or the person who shot their partner after an argument on your property. I have read of similar incidents to all of these scenarios within the past month. Most apartment leases have either an implied or express duty to maintain safe premises. So doesn’t the reasonable regulation of guns on one’s private property come within the purview of that duty? Or, by some stretch of the imagination, are gun-owners (or owners of loaded guns) a protected class? While common sense and some state laws clearly affirm the right of landlords to adopt reasonable regulations governing gun possession, others seem to cloud the issue.

One very clear ruling was by a Federal judge who held that the Wilmington (DE) Housing Authority’s policy of prohibiting residents from openly carrying firearms in “common areas” of public housing buildings is reasonable and does not unduly restrict residents’ second amendment rights.

In Tennessee, State Attorney General Tom Humphrey issued an opinion stating “A landlord can prohibit tenants, including those who held handgun carry permits, from possessing firearms within leased premises.” He cited the Uniform Residential Landlord & Tenant Act (“URLTA”), stating that a landlord and tenant are free to establish terms governing the use of the property.  Tennessee Opinion No. 09-170.

On the other hand, in an amendment to Minnesota’s law governing the issuance of permits to carry pistols, the right of any “private establishment” to generally prohibit the right to carry or possession of firearms was reiterated. However, it also provides that a private establishment may not prohibit the lawful possession of firearms in a parking facility or parking area. It then goes further to provide “A landlord may not restrict the lawful carry or possession of firearms by tenants or their guests”. I find the latter provision to be incongruent with the rights of parties to enter into contracts.

States which have adopted the URLTA, such as Kansas, have a statutory provision permitting landlords to adopt rules and regulations and any such rule and regulations is enforceable against the tenant if:

“(a) Its purpose is to promote the convenience, safety, peace or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally;

(b) it is reasonably related to the purpose for which it is adopted;

(c) it applies to all tenants in the premises equally;

(d) it is sufficiently explicit in its prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what such tenant must or must not do to comply;

(e) it is not for the purpose of evading the obligations of the landlord; and

(f) the tenant has notice of it at the time such tenant enters into the rental agreement."

In other states,  parties may generally waive fundamental constitutional rights by contract if they entered into the contract with relatively equal bargaining powers, the contract is not otherwise void or against public policy, and the parties willingly and knowingly agreed to the waiver. When determining whether a tenant has the requisite understanding to render an affirmative knowing voluntary and intelligent waiver, courts do not require the tenant to know if the source of the right being waived is the Constitution or a statute; instead, the relevant assessment is whether the tenant understood the consequences of the right when he or she gave it up. This means the lease provision or addendum which contains the waiver should be written very clearly, and initialed and signed by the tenant so that there can be no doubt that the tenant understands the substance of the waiver.

We have clients who are very concerned about the proliferation of guns on their properties and the resulting threat to safety of their residents and employees. We have advised them to post clear signs on their clubhouses and common areas barring guns. Query, why not include provisions in the leases restricting or limiting gun possession on the property, or, at a minimum, requiring that, at all times, they be unloaded, locked up and that any ammunition be locked in a separate location? Assuming guns are permitted, it is recommended that a gun may be present only for purposes of immediate transport to the residents’ apartment or off of the property and may not be loaded. If a landlord is willing to offend or lose some potential residents who cannot abide by these restrictions, is it the landlord’s prerogative?