[rnchick]

http://www.newschannel5.com/global/story.asp?s=6242822

Community Suggests Gun Possession Is Illegal For Residents

March 18, 2007 02:02 AM

ANTIOCH, Tenn.- Some people in a Nashville neighborhood are furious over a new rule that makes it illegal to own a gun.

Residents in Nashboro Village said it's unconstitutional and leaves them defenseless.

Two weeks ago, residents received a from their homeowners' association indicating that guns are not allowed on the property.

"It thought it was ironic that they say you can't have something when the United States government says you can," said resident Cristina Salajanu.

Salajanu would like to give her neighborhood management company a history lesson.

"I think it's unconstitutional," Salajanu said. "They can't tell you what to own or not to own in your own house."

Salajanu is talking about the Bill of Rights, specifically the Second Amendment, which grants citizens the right to keep and bear arms. It's been an American freedom for 215 years but Salajanu and other residents said it's been taken away from them.

"Something needs to be done," she said.

Two weeks ago, the property management company at Nashboro Village told its residents no more guns on the property.

"It incensed me that it was written the way it was," said a resident who asked not to be identified.

She said there is a serious need to feel protected here and a firearm can do that.

"We've got dark areas, the lighting is very definitely very dim," she said.

Salajanu said that burglaries started to increase since late summer...

She said she believes her neighborhood has changed since she moved in last year.

"Three weeks ago someone was stopped at gunpoint," Salajanu said. "It seems the nature of those burglaries is becoming more dangerous."

Some residents at Nashboro Village have campaigned for better lighting and more security but if they can't get either they at least want their Second Amendment rights upheld.

"If I'm walking if I'm walking my dog or if I am outside walking and if I don't feel safe and I'm licensed then I'll carry a gun," said the resident who did not want her identity disclosed.

Officials with Ghertner and Company, the property manager at Nashboro Village, would not make an on-camera comment about the gun policy but said they plan on changing the rule soon to allow firearms on the property.

However, they would make it illegal to fire those guns, which residents say is still unconstitutional.

Neighbors said they understand the gun rule is meant to keep criminals out of Nashboro Village but they don't believe that prohibiting firearms is the best way to do that.

[vis-à-vis]

Maybe it will go to court and we'll get another pro-2A ruling similar to DC. I'd break that rule.

[bensdad]

No way on earth this holds up in court.

[Doggy Daddy]

And this is an example of the reasons I won't live where there's an HOA! :cuss:

[The Deer Hunter]

That would be ironic. You can have a gun, but if your home is invaded you cant shoot the badguys.

[Sindawe]

I saw that article this morning on the HOA Nut House web site. Rather bites for the folks living there, but I have to wonder where those folks were during the HOA board meetings? This kind of thing would have been discussed at the meetings and voted on. Should have also been in the meeting minutes.

Oh, wait. Thats right. Few people ever bother to attend such meetings unless they want to belly-ache about something or think they are gonna get free money.

[mp510]

No way on earth this holds up in court.
It very well may. HOA's have been allowed by the courts to get away with a lot over the years. :uhoh:

[shaggycat]

Hmmmm, if one was planning on robbing a house, I wonder, in which subdivision would said person start?

DUH!:banghead:

[thexrayboy]

A HOA dictating that it's members were not allowed to possess firearms in
their own homes will no more stand up in court than if the same HOA dictated that the homeowners were not allowed to keep cell phones in their house, or plasma tvs, or dirt bikes or skateboards etc etc ad infinitum ad nauseaum.

The first citizen who gets fined, harassed or sued by this HOA for violating this unenforceable rule will have a nice fat settlement check waiting for them at the end of the trial. What private property you decide to own and keep in side your house is not open for regulation outside of the legislative process.


Classic blissninny dogooders operating HUA again.

[TargetTerror]

I'm a little confused here. What exactly is HOA? Is this a Home Owners Association? If this is one of those collective neighborhoods, which is setup similar to a condo in that there are collective fees and rules, then they may very well be able to set rules like "no guns."

[bensdad]

I suppose it depends on the wording of the contract they signed. HOAs can have rules about pets, boats in the driveway, sheds on the property, brick faces on the houses, loud music, cars sitting out, yada,yada,yada. But regulating private property inside the home? I'd be very surprised if this stands the test of litigation.

[TexasRifleman]

I'd be very surprised if this stands the test of litigation.

Dunno, these things stand up pretty well.

If the clause about firearms was in there up front and the buyer agreed to it, might make it tough.

You can waive your 5th amendment rights, I suppose you could waive your 2nd

Now this one sounds like it was an add on so it probably won't stand.

[Valkman]

No way on earth this holds up in court.

Wrong - when you move in you give up all your rights and cannot sue them unless they break the law. We went at it with ours in our previous house for a year before moving. They are always right - and you agree to that when you move in. We caught them in several lies where certain people got what they wanted but it didn't matter for us.

I'll bet they get away with it.

[MatthewVanitas]

I dunno, the libertarian in me seems to think that the HOA is correct. Incredibly, absurdly stupid, but correct.

An HOA is some sort of unholy agreement you enter into as part of purchasing a property, right? If I voluntarily sign a contract saying that I'll submit to daily hernia checks to work at KoffeeHut, that doesn't violate any rights, correct?

The HOA isn't preventing you from exercising your inalienable rights, they're just saying that they'll take their ball and go home (well, _your_ home) if you exercise them. Is this not akin to CDWarehouse having the right to not carry a given artist's CD if they disagree with his message?


Don't get me wrong, I think the HOA is dumb. But it bugs me to have folks use the "OMG!!! The CONSTITUTION!!!" arguments in situations that do not involve government oppression.

Topping my list is the twits who say that criticizing a journalist on your blog counts as "disrespecting their 1st Amendment rights", and this HOA debacle doesn't seem too far off.

Can you remove yourself from an HOA by declaring yourself a sovereign household, or do you never really own your own house under and HOA?

-MV

[entreus]

Not sure they'll be able to enforce this one, but then I've not delt with mine in that depth. My HOA, is very lenient; broke is the word another neighbor used. Anyway a HOA can't make it illegal to have a gun, they can only make it against the rules and fine you for it. Usually all the rule have to reflect local law and ordinances.

Of course then you may be required to get ride of said firearms to aleviate the fines, which would continue to accrue. Then you can't sell until you pay the fine.....I'd probably end up selling if it was found that they could fine me for my firearms. Not sure how they'd find out though. Already live in a pretty liberal state and people freak out if they think they see a firearm.

I'm curious what the ruling will be if the local government is asked. Sounds like a headache for someone.

[Thain]

+1 MatthewVanitas

There is no Constitutional issue here; The residents entered into a covenant (a "contract" for you non-lawyers) with their HOA. If the "No Guns" clause was in that contract when they signed, tough. If the clause was added to the covenant after-the-fact, well, they agreed to that too. It would have been voted on, or otherwise added, as the contract would have spelt out.

If it wasn't properly adopted, then they have a case.

Its not a Constitutional issue, its a contract dispute.




A dumb contract, but there ya go...

[entreus]

To buy the house you have to agree to the cc&r s covenants, conditions & restrictions. They are usually set up by the builder and then turned over to a council of owners.

No, you can't remove yourself. After a while the rules become less and less enforced, unless you're in some ritzy neighborhood.

I read our cc&r s thoroughly and didn't find anything I live with. Makes some things a little tougher to do, but then you don't have to worry about the next neighbor having four cars up on blocks and storing garbage in the van until the end of time. I've seen it.....never close to my house thankfully.... :D

[entreus]

Have a HOA, but we also have a great range 2 miles away with a 600yd range. If my HOA tried this, I'd have to find a way to get the president out and someone with better agenda's in.

Maybe even see if the club could help me out, maybe even the NRA. Since I'm in both. :evil:

[mons meg]

So, do HOA "covenants" amount to contracts that you sign knowing that they can add stuff to them later?

How would this be different than signing a lease on an apartment where they included a "no guns" policy? Would that be an enforceable contract?

[30 cal slob]

there have been several rulings as of late regarding the display of american flags in HOA areas (such as condos, etc). i think these disputes are similar ... the offending homeowner has usually won, IIRC.

guns can't be too different.

[mons meg]

Well, unless they pass a rule saying they can come into your house at any time to check for undesirable objects, i don't see how they can even enforce it, assuming state contract law doesn't slap them down.

[buzz_knox]

there have been several rulings as of late regarding the display of american flags in HOA areas (such as condos, etc). i think these disputes are similar ... the offending homeowner has usually won, IIRC.


The home owners actually lose those cases fairly frequently.

The saving grace here is that while HOAs can heavily regulate what goes on inside the neighborhood, they can only regulate inside the home to the extent it affects property values.

[mons meg]

To continue that thought, the following excerpt from the Oklahoma State code on contracts would seem to provide a homeowner with plenty of wiggle room with regard to an HOA covenant that goes too far:

Those contracts are unlawful which are:

1. Contrary to an express provision of law.

2. Contrary to the policy of express law, though not expressly prohibited; or,

3. Otherwise contrary to good morals.

I especially like the good morals part. ;) Note that the Oklahoma Constitution (like many states) expressly protects RKBA:

The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.

I would think that a contract abrogating that right would be unenforceable. IANAL...would a real lawyer care to chime in?

[Ala Dan]

If the new rule is allowed to stand, I think I would relocate further east but
remain in the great state of Tennessee. I've never cared much for Nashville
or its 'burbs anyway; so this would solidify my decision~! ;) :D

[Dr. Dickie]

The bottom line is: Why in the world would anyone live in a HOA?
You couldn't drop the price of a home low enough to get me to live in one. It's bad enough that with the recent SCOUS rulings we barely actually own the property we live on, to invite some tin-horned dictator from a HOA to rule me on my own land, unthinkable!

[Jamie C.]

From the Tennessee State Constitution:

Sec. 26. That the citizens of this State have a right to keep and to bear arms for the common defense; but the legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

Personally, I don't think the Home Owner's Association has a leg to stand on, but we'll see.



J.C.

[Bubbles]

From the way the article is worded, it looks like the management company made up the rule, and the HOA never voted on the issue at a meeting.

Note:

Two weeks ago, the property management company at Nashboro Village told its residents no more guns on the property.

and

Officials with Ghertner and Company, the property manager at Nashboro Village, would not make an on-camera comment about the gun policy but said they plan on changing the rule soon to allow firearms on the property.

While I can't speak for this HOA, I know that the one for my community requires a 2/3 vote of the residents to change the CC&R's, with due notice (30 days) given to the residents for the upcoming meeting. It doesn't look like that happened here.

[zoom6zoom]

Does the state have preemption? That would overrule any local ordinances, and I would believe HOA regulations as well (they may think they are a government, but they're not.)

[Coronach]

Homeowners Associations are not a government, and this actually helps them in this dispute. The HOA is an organization that you agree to join when you buy a home in the development, and you also agree to follow all of their rules. Since they are not a government, they are not bound by the limitations placed upon government by the Constitution (state or local). Absent state laws (specifically addressing the scope of HOA powers) to the contrary, they can, quite literally, do almost whatever they darned well please.

This is one of the main reasons that I will never, ever live anyplace with a HOA. Most of them require you to give the HOA a blank check with regards to rules and regs when you buy your house. Even if their rules seems sane and reasonable now (no trash in your yard, lawns to be kept mowed, etc etc etc), all it takes is a couple of neighborhood busybodies to get in power and suddenly the silliness starts...and you agreed, in writing, to comply.

Have fun with that.

Mike

[tulsamal]

If the rule was in place when they signed the contract, then they did it "voluntarily" and they are screwed. But that doesn't sound like what happened. The HOA can't just "add in" some new rules that go against local and state standards and expect everybody to just fall in line.

I honestly think a good lawyer would send them packing for such a thing. Only the Federal "housing slum areas" can get away with this stuff.

Gregg

[MatthewVanitas]

I honestly think a good lawyer would send them packing for such a thing. Only the Federal "housing slum areas" can get away with this stuff.

I don't get the logic here: if a _Federal_ housing area can get away with restricting guns, how could a private entity be easier to target?

The Constitution applies to governmental authorities, because, in theory, only the government has true power over you.

From the Tennessee State Constitution:

An HOA is a private entity, therefore this is not a Constitutional issue, it's a contractual one.


-MV

[entreus]

This may not be true for all HOAs, but in my documents there is wording that states that the HOA rules will follow and comply with State and Local Laws and Ordinances.

The benefit of a HOA is that if something is being done in the community, you have a lot of pull when the president or his representative complains to the mayor, governor. There may be more of a response, well in theory at least. They can be good, they can be bad. I think they are just like anything else in life, they are good in moderation.

[Sindawe]

There are advantages for some to living in an HOA controlled community. Since I have little interest in yard work or house painting, the HOA takes care of that. It also pays for the water use out of the HOAs budget and has negotiated a bulk rate for cable service ($10/month for extended basic service) for each unit. The HOA also handles insurance on the structures so I don't have to hassle with it if I don't want to.

There are of course drawbacks as well. I can't rip out all the nasty water intensive Kentucky Bluegrass we have and replace it with something native to the ecosystem. Nor can I paint my house black with red trim and put grotesques on the down spouts. I will have to get HOA sign off should I want to do things like installing geothermal climate control for my home, or covering the roof of my home with solar panels.

People who live in HOA controlled communities need to keep their HOA under control by attending the meetings and even serving on the board of directors.

[ozwyn]

tough call.

On the one hand you have the famous sat dish ruling which allows condo and homeowners to put up a dish, which was based on very similiar rules.

On the other there are those distasteful eminent domain rulings, which may appear to support the HOA's.

Personally, if my condo association had a rule like that I would not hesitate to fight it with hard facts in the owners meetings and see how much fight they have on this issue. Might not have to sue, merely provide an effective counterargument with enough facts and real life examples (katrina) to shut down the Rosie wannabes. (sorry if that generalization seems offensive, but when I read this I see some Rosie-heads trying to make a difference without understanding the lie they have been sold)

[PaulCSomething]

I’ve been on an HOA board and it was a thankless job. It was a great experience to see how it works though. People didn’t put in a lot of time to make there decisions and relied on the management company for advice (some of it was quite poor, come to think of it.)

I hate HOA’s and the “HOA Nazis” they attract. That’s why I bought a piece of property with out covenants. Wouldn’t even consider one that did.

Oh, and the guy next to me does have a bunch of cars up on blocks…

“Man, What is all that trash.” “That’s freedom baby, that’s freedom.”

Live and let live. I don’t like the way you live, tough for me, BUT you had better not complain about anything I do.

[ozarkhillbilly]

This rule by a HOA would be impossible to enforce, They have a hard enough time enforcing the big obvious rules like don't paint your house orange and purple let alone whether or not you have a gun in your house. Also HOA almost always looses cosmetic cases if you are willing to take it far enough, 99.% percent of the time when a case gets out of the local courts the HMO looses. They can win in cases that involve making you pay your bills or your share of repairs or upgrades. Also it does not matter what you sign, you can sue, but why bother let them sue you that’s the only way they can enforce their rules, if they put a lien on your house any good lawyer can get it taken off and you don't need to worry about that until you sell.

[C. Rabbit]

Am I wrong in thinking that these people can just quit the HOA - and thus its rules and benefits? The HOA doesn't won the property, does it?

So ignoring the rules would have the worst effect of fines if you wanted to stay in the HOA, and getting kicked out of the HOA if you didn't pay the fines?

And while this is a contract - I don't know how far an organization can control you in this manner.

CR

[ArfinGreebly]

unless they break the law

Didn't we recently have a case . . . somewhere . . . that struck down a law as unconstitutional?

You know, in that kind of "the Constitution is senior law" sort of way?

I don't see it standing.

An organization like an HOA doesn't get to decide which rights I exercise, especially if the contract I signed didn't already have that rule. Later, if they "vote" my rights out, they have broken the law.

Incidentally, while HOA battles are commonly won by the side with the best funding (i.e. the HOA, what a shock), there is a recent encouraging story in Reno (I'll see if I can find it) where the home owners successfully sued the HOA to bring them under control.

[glockman19]

Absolutely, positively a violation of their 2A rights...HOA or not. Definitely is unconstitutional and unenforceable.

[Autolite]

I have no sympathy what so ever for the home owners. They knowingly entered into a contract. They wanted to be able to dictate to others on how to live and now they are whining because they don't like to be dictated to. Sucks to be them ...

[FieroCDSP]

The part about not being allowed to discharge the firearm in self defence, just because of the HOA is crap. They stated they were looking at a revision of it to say that you're allowed to own the firearm on the property...

Officials with Ghertner and Company, the property manager at Nashboro Village, would not make an on-camera comment about the gun policy but said they plan on changing the rule soon to allow firearms on the property.

However, they would make it illegal to fire those guns, which residents say is still unconstitutional

All this says is that it's illegal to go into the backyard and plink cans on Sunday. Should you have to use the firearm in self defence, or defence of home (I'm not sure if TN has castle law), then I doubt any court could find you in breach of contract for defending your life or property against a criminal element. This is no different than a city having a local ordinance saying you can't discharge a weapon in city limits. It applies to doing so on a whim, not in defense of self or property. I would speak with the HOA and make sure they include a defense clause in the wording. It's not unconstitutional for a governing body (as much as this is one) to disallow the willful discharge of a firearm for anything other than defense. It's actually common sense. Too many people, too small an area, and guns...it's too easy to damage people or property.

[Ghost Tracker]

There are an increasing number of legal cases currently underway trying to decide if the owner of locations that expressly prohibit firearms ("Gun Free Zones") are resultingly responsible for the safety of the now unarmed individuals inside those locations.

Could Ghertner & Company / Nashville Village be out-manuvering the Home Owners Association into requiring a privately-contracted neighborhood security firm to cover their resulting "Gun Free Zone" liability? After all, they are a MANAGEMENT company, so they easily rationalize an increase in the homeowners' annual dues to "cover" the now necessary security while (in truth) making an "administrative fee" on the difference between the increased (dues) revenue and their actual cost of the security contract. Their new gun regulation now generates PROFIT!

While I CERTAINLY wouldn't live there, I have to admire their marketing. Timid "no-gun" type people who are frightened by what is happening in their current Metro Nashville neighborhood would actually pay a PREMIUM if they were told "your children will be safe on Nashville Village streets because GUNS AREN'T ALLOWED!". The sad part is...it's a lie. No (practical) amount of restriction or security can prevent a criminal from having a gun or entering the neighborhood. If killers/rapists/addicts aren't worried about the laws concerning murder, rape & drugs, they're SURELY not going to be concerned about breaking a neighborhood gun restriction.

Move to the country. Teach everyone under your roof a self-reliant attitude & practical self-defense (up to & including tactical firearm technique). I also like big, well-trained dogs who know the safety of my wife & children are why they get fed. But I like big dogs anyway.

Y'all keep your powder dry,
Ghost tracker

[K3]

Question:

If you buy a house in a new neighborhood before the HOA forms, say the first house in a new subdivision, can you effectively tell them to bugger off?

You signed papers on the house before there was a HOA. You didn't join the HOA. You want no part of the mess, and you want to stay right where you are.

Can you be compelled to join them? Or can you give them the one finger salute and go about your business?

[ConfuseUs]

The HOA is just doing a little CYA because they aren't doing a good job of maintaining the property anyway. The residents have stated that they want guns for self-defense because the number of criminal incidents is going up. The #1 deterrent to crime at night is good lighting, which the HOA/management company is doing a poor job of supplying. Instead of spending money on light bulbs or installing new fixtures the management company figures that adding a stupid new rule means a) they keep the money they should spend on lighting and b) it looks like they did something about the problem. I bet the HOA thinks they're SOOOOO clever though.:rolleyes:

[rbernie]

If you buy a house in a new neighborhood before the HOA forms, say the first house in a new subdivision, can you effectively tell them to bugger off?

You signed papers on the house before there was a HOA. You didn't join the HOA. You want no part of the mess, and you want to stay right where you are.In north Texas, they don't break ground for the first house without the HOA being set up/incorporated as a function of the devleopment plan.

[K3]

In north Texas, they don't break ground for the first house without the HOA being set up/incorporated as a function of the devleopment plan.

I'm sure that's largely the case nowadays, but what I'm talking about is before HOAs became all the rage. Certainly HOAs have invaded after houses have been put up.

[rbernie]

As best I understand things, you can't be 'forced' into a HOA because the HOA authority comes from the fact that you bought the land from a developer with the restrictive covenants already in place. In sum - HOA oversight and authority was a contract stipulation of buying the land from the developer.

If you don't buy the land from such a developer, the HOA does not apply.

[HiroProX]

I've only had to deal with a HOA once.

The whole fiasco involved a bloc of the fascist mental defectives wanting an rule against mowing one's yard or, children playing loudly before noon on sundays. Naturally, I rather strenuously objected to this which had the ringleader turn her crooked nose at me and ask me about my religion, to which I effected my best Voltarie impersonation...

Madam, I have only prayed to God once. I asked him 'Oh Lord, make my enemies ridiculous.' And as I stand here I'm quite convinced that he has answered that prayer.

[SoCalShooter]

Salajanu said that burglaries started to increase since late summer...


Once criminals know they are unarmed the rate will go up much more...it is possible the HOA is the burglers.

[CWL]

Property management companies can be fired, we replaced one at a condo I lived at. As a member of your HOA, you can make this a proposal at your next meeting.

HOAs are normally restricted by the CC&Rs on how new rules can be adopted. Usually there must be a vote by HOA/home owners with a % voting for approval. I hope this true for your case.

Also, rules can be changed or removed by majority vote of the HOA. Get involved with your HOA -run for membership in the Board. Get your voice heard rather than just complain about it online.