leases banning firearms

NcongruNt · Post by **NcongruNt** » Tue May 01, 2007 2:24 pm

So I have an odd question, and can't seem to find a good answer to it.

I have an unique situation in that I live in a housing cooperative that is designed for students. There is a clause in the lease contract that prohibits the possession of firearms on the premises of the house. This is part of a signed agreement.

For the record, I have no plans to violate the agreement, especially since I will be moving out soon anyway. I am simply curious as to the legal ramifications here.

I understand that someone violating the agreement can be evicted for doing so, while owing the balance of the lease to the organization. I am hazy on this, but I do not believe that criminal trespass charges could be filed on these grounds, even with verbal notification; it is a leased residence and I do not think subject to 30.06 notification. The interesting thought to me is that the common areas of the house (entrances, hallways, dining and living rooms) are more technically property of the organization rather than leased space of the individuals, although common areas are for collective use by the members as part of the lease. To further complicate this mental exercise, in a cooperative the law views the members of such an organization as individual property owners.

Any thoughts? I figured the more lawyerly types might have a better answer than I can come up with.

seamusTX · Post by **seamusTX** » Tue May 01, 2007 2:27 pm

I think you're right. However, if the landlord called the police and you were armed at the time, they might arrest you and get it sorted out later.

- Jim

HankB · Post by **HankB** » Tue May 01, 2007 3:18 pm

IANAL, but I think a lot would depend on the exact wording of the lease agreement.

As for an outright prohibition of firearms . . . that would likely carry as much weight as outright prohibition of speech, religion, newspaper reading, or voting.

What's the answer? I just don't know . . . but I would not have signed such a lease. (Of course, to be cited for a violation, one has to actually be caught . . . )

txinvestigator · Post by **txinvestigator** » Tue May 01, 2007 3:24 pm

Sine the house is "Premises under your control" you are exempt from Penal Code section 46.02, and can carry a weapon there without criminal consequence.

30.06 would not apply, as you would not be in possession of the handgun under your CHL while there.

It is strictly a civil matter.

rspeir · Post by **rspeir** » Tue May 01, 2007 3:28 pm

txinvestigator beat me to it.

stevie_d_64 · Post by **stevie_d_64** » Tue May 01, 2007 3:30 pm

OK, I'll bite...

Arrest you for what???

From what I see in this is that the "lease" is an agreement between two private entities...And that if the property itself is not located in and area where you cannot carry anyway per the law...

The only thing I see anyone violating is the lease agreement which is not the law...

Sure, the landlord can evict you (if you are found out), but, when "NcongruNt" described the "common area" used by everyone, and the actual lease is for the rental of the "room" part of the deal...

I just don't see a big enough bump on this to worry too much about...

With all that has happened lately...I'm begining to sense a real push to redefine, or eliminate a lot of these "gun free zones" over the next few years all around the country...

I think the sleeping giant has awoken...

Need to keep him awake!

seamusTX · Post by **seamusTX** » Tue May 01, 2007 3:36 pm

HankB wrote:As for an outright prohibition of firearms . . . that would likely carry as much weight as outright prohibition of speech, religion, newspaper reading, or voting.

If the ultimate property owner is not a government entity, they can legally prohibit any material thing or activity they want, unless it is a violation of the Americans with Disabilities Act (service dogs, for instance).

Even if it is a government entity, the Supreme Court has given them considerable leeway in making rules intended for the safety of residents.

- Jim

txinvestigator · Post by **txinvestigator** » Tue May 01, 2007 3:49 pm

seamusTX wrote:
HankB wrote:As for an outright prohibition of firearms . . . that would likely carry as much weight as outright prohibition of speech, religion, newspaper reading, or voting.
If the ultimate property owner is not a government entity, they can legally prohibit any material thing or activity they want, unless it is a violation of the Americans with Disabilities Act (service dogs, for instance).

Even if it is a government entity, the Supreme Court has given them considerable leeway in making rules intended for the safety of residents.

- Jim

Agreed. But remember those rules carry NO criminal weight.

NcongruNt · Post by **NcongruNt** » Tue May 01, 2007 4:00 pm

seamusTX wrote:
HankB wrote:As for an outright prohibition of firearms . . . that would likely carry as much weight as outright prohibition of speech, religion, newspaper reading, or voting.
If the ultimate property owner is not a government entity, they can legally prohibit any material thing or activity they want, unless it is a violation of the Americans with Disabilities Act (service dogs, for instance).

Even if it is a government entity, the Supreme Court has given them considerable leeway in making rules intended for the safety of residents.

- Jim

Well, that's the thing - it's a cooperative. It's also a 501(C)(3) Non-Profit corporation. The members who live here *are* the property owners. The organization employs a minimal staff for management of the properties (including a General Manager). I am just as much an owner of the property as the other 190-ish members of the organization. The General Manager has the authority to enforce the rules and bylaws of the organization, but is in no way the property owner. It's a weird situation - the members own the properties, but can also be evicted for violating the lease agreement. Once the lease is up and the evicted member no longer lives in one of the houses, he or she ceases to be a member of the organization. The board of directors (of which I have been a member in the past) is also made up of members of the organization elected by the membership.

seamusTX · Post by **seamusTX** » Tue May 01, 2007 4:03 pm

txinvestigator wrote:Agreed. But remember those rules carry NO criminal weight.

Right. You can't be prosecuted criminally for violating the lease.

But it seems like it might be trespassing (30.05, not 30.06). As a LEO, what would you do if a landlord called and complained that a tenant was playing basketball in the hallway or something like that?

- Jim

txinvestigator · Post by **txinvestigator** » Tue May 01, 2007 4:06 pm

seamusTX wrote:
txinvestigator wrote:Agreed. But remember those rules carry NO criminal weight.
Right. You can't be prosecuted criminally for violating the lease.

But it seems like it might be trespassing (30.05, not 30.06). As a LEO, what would you do if a landlord called and complained that a tenant was playing basketball in the hallway or something like that?

- Jim

Trepassing cannot be enforced in a place you lease. A lease is effective consent, and a civil matter if there is a disagreement regarding that consent. If that was not the case, a landord could just call the police and have anyone removed at anytime by revoking that consent. That's why we have JP courts and eviction procedures.

lrb111 · Post by **lrb111** » Tue May 01, 2007 7:48 pm

Is this a fraternity house? On school grounds?

NcongruNt · Post by **NcongruNt** » Tue May 01, 2007 8:02 pm

lrb111 wrote:Is this a fraternity house? On school grounds?

No, and no.

It's a housing cooperative, owned by an educational non-profit to provide affordable student housing - for students and by students.

See the Wikipedia article for a thorough description: http://en.wikipedia.org/wiki/Cooperative. There is a specific section for housing cooperatives that will give you insight into the way this specific organization works. See the "Group Equity" type for how ours specifically works (we are a member of NASCO).

AR Traveler · Post by **AR Traveler** » Tue May 01, 2007 9:22 pm

I think I know the place your talking about because we considered moving there when my wife was in grad school. The other option was an apartment that didn't allow "junk" cars. The gun think irritated me enough to not choose the educational property but those 12 months of playing musical parking spots and hide-the-primered-truck got old

Venus Pax · Post by **Venus Pax** » Tue May 01, 2007 9:51 pm

I remember when dh & I were going to school. It's tough, because your options are highly limited.
I would carry, but make sure the thing is concealed at ALL times. And don't tell a soul you have it.
It doesn't look like you need to worry much about the criminal aspect, but if these people want to get ugly it could cost you in other ways. If your like most students, money is scarce for the time being.