Apartment lease ban on guns California

[harbingerm]

Exactly, and the rental car analogy of pulling a trailer or using it off road doesn't apply. Those actions are not protected. A landlord has no business telling me I can't exercise my 2nd amendment right to own firearms any more than he could either enforce me or prohibit me from practicing the religion of my choice. It just won't fly! Same goes for the garbage people are spewing out about how someone can't come on to their property and do something they prohibit. Simply going on/into someone eles's private property is NOT the same as PAYING to LIVE in a property where the resident has the expectation of it being his home.

 

[Ed Ames]

Simply going on/into someone eles's private property is NOT the same as PAYING to LIVE in a property where the resident has the expectation of it being his home.

No, it isn't. And that's not the issue under discussion per se either.

Here's an example... let's say I'm a devout believer in Religion X and I really want to spread the word about my religion. I have some extra space in my home so I decide I'm going to give room and board to anyone who will attend discussions in the morning and evening of the merits of Religion X. The meetings will take place in the room they are rentin. Religion X includes a belief in getting everything in writing so I write up a lease agreement which stipulates that they are renting a room in exchange for attending these meetings in the rented rooms.

That room is legally their home and they have all the rights of someone who paid cash. Legally they have all the rights of someone who bought the room outright.

So a couple people agree to this arrangement and we're all having our meetings and it's great fun and so on.

Then one of them tells me he doesn't want to attend the meetings any more. "You know, Religion X really isn't my thing..."

Freedom of religion is a protected right in the USA... yet I can evict the person... because they are breaching the terms of our lease. They aren't paying their rent.

If I stipulate in a lease that you cannot store firearms on the property and you do so anyway it is EXACTLY the same... you aren't paying part of your rent. The cost of living in that apartment isn't just X dollars a month... it's also taking the garbage out regularly (yes, that's in some leases), not having guests for more than 48 hours (or at all) without management approval (yes, that's in other leases), keeping your car registered and operational (yes, that is in some leases), and, if you agree to it, not having firearms on the property.

 

[Kentak]

Those actions are not protected. A landlord has no business telling me I can't exercise my 2nd amendment right to own firearms any more than he could either enforce me or prohibit me from practicing the religion of my choice.

No, the landlord can't tell you you can't own a firearm, but he can prohibit you from possessing it on his property AS A CONDITION OF THE LEASE. If you don't like it, don't sign the lease. Otherwise, you've contracted not to have a gun on the property, with whatever penalties for violation that are stipulated in the lease and allowed by law, e.g., eviction. The landlord could care less if you have a gun while you are somewhere else.

I guess it needs to be said again: The 2nd Amendment protects your RKBA from infringement by the government (at least that's what we believe it does--stay tuned). That's all. Period. Your landlord is not the government, the 2A doesn't prohibit him from doing anything.

K

 

[cassandrasdaddy]

i think the no smoking bans are a good case in point though i know someones gonna try to play second amendment here since its guns not cigarettes. in both cases no one can tell you you can't smoke or own guns just can't do it on their property

 

[harbingerm]

I will admit not to understanding how the clause in the lease against guns on the premises can even be legal. Any more than they could prohibit me from practicing Catholicism, or whatever, in my own place. I'm not talking about running a church/bible study/etc, just personal practice. Has anyone ever challenged things on a lease like these in court?

 

[Kentak]

Just a quick note, here in Mississippi they enacted a castle law last year and now the company I work for cannot forbide firearms locked in the cars parked on the company property. I spotted the change on the no weapons poster in the facility

That's fine. I'm assuming the law specifically addresses that issue. If a state has a law that said landlords can't prohibit guns as a condition of lease, then fine and dandy. Don't know of any that do, but there may be some.

K

 

[Kentak]

I will admit not to understanding how the clause in the lease against guns on the premises can even be legal.

Because there is NO LAW against putting such a provision in the lease.

The 2nd Amendment does not apply to private interactions between private individuals. Sheeesh! It only applies to what the government can do, or not do.

K

 

[Ergosphere]

Geek, I agree.

Also, when you rent an apartment, it becomes your residence. For many purposes it is treated as your property... e.g. the landlord can't barge in at any time without being guilty of trespassing. So, my view is that lease restrictions on firearms are almost certainly illegal if the 2nd protects an individual right.

 

[jackdanson]

Renting something doesn't make it "temporarily your property". If that was the case apartments couldn't make rules regarding dogs. I think people are getting confused with criminal law that states an apartment/hotel room is a dwelling that falls under castle doctrine, this doesn't mean that you "temporarily own" the property, just that you have the right to defend it as if you owned it.

The only recourse you have is to
A) Go somewhere else, let the owners know why. If they get enough people doing this they may feel it in their pocket.

B) Request a custom contract omiting that part of it. Clarify that you are a responsible owner. They probably won't go for this, but you could try.

C) Keep the guns anyway-- worst that could happen is they boot you, could cost you a lot of money though.

 

[Ed Ames]

No smoking leases are a great example.

There are apartments (all over the country I suppose but I know specificaly about California and Texas having them) where the lease specifies that you cannot smoke anywhere on the property including inside the units.

There is nothing illegal about smoking in your home -- just as there is nothing illegal about possessing a gun in your home -- but doing so is a violation of your lease agreement.

Violations of the lease agreement can trigger more than evictions. Pay your rent late and you'll trigger contractual obligations that can include paying extra money, paying by money order, or other terms.

Think of it this way... does the 1st ammendment protect atheists? It talks about freedom of religion, bars state religions, bars prohibitions of the free exercize of religion, right? Well atheists don't have a religion. That's what the word means... the a-prefix means 'non' and theist means the belief in divinities or deities. So... can the state force atheists to choose a religion? Does the 1st amendment demand that they have one? Or does the right to have something implicitly include the right not to have it as well?

The answer is obvious but I'll give it anyway. A right is not a requirement... having a right to bear arms doesn't create a requirement that you bear arms. Having a right to be religious doesn't create a requirement that you have a religion. Having a right to free speech doesn't create a requirement that you speak. Having a right to avoid self-incrimination doesn't remove your right to confess to crimes.

If I have a right not to have a religion, or a gun, then asking me to exercise that right as a contract term doesn't infringe on my rights.

 

[thorn726]

no smoking leases work because they refer to DAMAGE to apt and NUISANCE to neighbors. not exactly the same as having a gun in the apt.

here's what i was able to dig out of the Cal DOJ site on it, also good to know the
laws on defending your home are pretty good. no duty to retreat. (edited, i first posted a somewhat incomplete quote)

it could easily be argued that a person's right to defend his "castle" supra cedes the lease agreement

they can't enter without 24 hr notice except in emergency like fire or plumbing catastrophe in Cal. your only real concern is can they evict you if you shoot some criminal- even then besides that you might want to move anyway after that, not likely you could be evicted.

Firearms in the Home or Business
Any person over the age of 18 who is not prohibited from possessing firearms, and if otherwise
lawful, may keep and carry a firearm or have a firearm loaded at his or her place of residence,
temporary residence, campsite, or on private property owned or lawfully possessed by the person.
(Penal Code §§ 12026, 12031(h) and (l).) Any person engaged in any lawful business (including
nonprofit organizations) or any officer, employee, or agent authorized for lawful purposes connected
with the business may possess a loaded firearm within the place of business if that person is
over 18 years of age and not otherwise prohibited from possessing firearms. (Penal Code §§ 12026,
12031(h).)

NOTE: A person’s place of business, residence, temporary residence, campsite, or private property
may be located in areas where possession of handguns or other firearms, whether loaded or
unloaded, is otherwise prohibited. Such areas include, but are not limited to, state, federal, or private
game reserves or refuges, federal and state parks, and other public lands. Questions regarding the
applicability of such laws should be directed to your sheriff or chief of police, federal or state fish
and game officers, or federal or state park rangers.

 

[Ergosphere]

Violations of the lease agreement can trigger more than evictions. Pay your rent late and you'll trigger contractual obligations that can include paying extra money, paying by money order, or other terms.

Requiring additional payment when the rent is late violates California state law. Not that it stops landlords...

 

[che_70b]

Let me start buy saying I come from a long line of land owners so this is not coming from an "uppity renter".

The BOR grants us no rights, it lists Divinely given natural rights that the founding fathers thought were important enough to list specifically. I am appalled by anyone and everyone be they government agents or "property owners" who think they have a right to over rule these things we consider sacred as a society. I was particularly off put by the assertions of some that disparaging the character of those who would sneak around behind the backs of those that dared to seek to deny those basic rights of the people who they earn money from by renting too by calling them liars and oath breakers. By virtue of wanting to attack such basic human rights a person proves themselves unworthy being shown the common curtesy of keeping an oath to them. In Norse mythology, a culture that took oaths very seriously, you can find plenty of examples of heros being decietfull to best wicked foes and outsiders.

My other point. Some people talked about a persons right to tell someone they could not have a gun they could not carry a gun into your home. This is really a completely different issue, you certainly should have control over your own residence, but this is not the same thing as commercial property like appartments where you are dealing with the living space of others.

(BTW not all libertarians have this desire for unquestioned control of of anything they own. I am a libertarian becouse I believe everyone should be able to live their lives as free from intereference as possible, I aply this same standard to myself as I do the .gov)

 

[dvdivx]

I think it's more ironic that these so called "it's my property so you have no rights" types will just have their land seized so the government can just make more money from someone else. Don't expect any sympathy then.

You have the expectation that a tenant will pay full rent on time and take care of the property. When a landlord starts saying "x" is prohibited on my rentals and "x" is legal they are only waiting around for someone who has the means to take them to court to do so.

 

[qdemn7]

I used to swallow the Kool-Aid about private property rights until I realized it really meant that private property owners, especially businesses, don't give a damn about any one's rights except their own. Just another reason why I support a Constitutional Amendment Revoking Corporate Personhood.

 

[Kentak]

I am a libertarian becouse I believe everyone should be able to live their lives as free from intereference as possible,

Well, I'm a libertarian, too. And one of the principles of libertarianism is that people should be free to make honest, mutually agreeable transactions without government interference. If a landlord wants to put a restriction on what a renter can have on the property as a condition in the lease, what's the problem? If you don't agree with that restriction, take your freaking divine right and trot it over to some other landlord who doesn't have that restriction.

Let me turn the situation around. Another BOR guaranteed right is the 1st A protection of free speech and free press. That means, of course, the right to freely express ideas and advocate for political and other causes. Suppose you own an office building and one of your tenants moved out and you have an office vacancy. So, a potential tenant walks into your office and indicates he wants to lease the space. Well, it turns out, the potential tenant is the National Organization To Repeal The Second Amendment and Confiscate All Guns.

So, do you say, "Gee, well, I'd like to rent this space, but I don't agree with your purpose, so I can't rent to you. You'll have to try somewhere else."

Or,

"Gosh, well, I don't agree with you, but you have a constitutional right to advocate for your position and I can't violate that, so, sign here."

Which is it?

K

 

[HKUSP45C]

You have the expectation that a tenant will pay full rent on time and take care of the property.

No, you're incorrect. I and the tenant BOTH have expectations that we will each live up to the the voluntary contractual agreement we both signed. That may or may not include the landlord prohibiting things on the property, even guns.

When a landlord starts saying "x" is prohibited on my rentals and "x" is legal they are only waiting around for someone who has the means to take them to court to do so.

On what grounds, may I ask? Is it your contention that contract law is such a new-fangled idea that the US court system is just now going to start having cases regarding it?

It's been done, the contracts are enforceable, legally. Now, enforcing it practically is a whole different fish.

 

[Kentak]

I think it's more ironic that these so called "it's my property so you have no rights" types will just have their land seized so the government can just make more money from someone else. Don't expect any sympathy then.

You are mischaracterizing the property rights argument and improperly conflating different concepts. Why won't you address the central issue? That is that the 2A RKBA is a protection against infringement by government power. It has nothing to do with private transactions. Do you deny that?

Why is Heller in front of the SCOTUS? It's not because some landlords didn't allow tenants to posses guns on their property, it's because the government of DC prohibited it.

Can you cite any case law successfully challenging, on 2nd A grounds, a landlord's right to restrict firearms as a condition of lease?

K

 

[Ed Ames]

no smoking leases work because they refer to DAMAGE to apt and NUISANCE to neighbors. not exactly the same as having a gun in the apt.

Incorrect on both fronts.

First... No smoking leases work because people sign them and there is a sizeable market of renters who will pay extra to live in such a place. They need no other justification.

Second... many people would argue that the presence of guns enables damage to the units (ND holes) and are a nuisance to others (loud noises and unexpected bullet wounds caused by said NDs). If the guns weren't there those issues would go away. So by your logic "no-guns" leases will work because they deal with the "DAMAGE to apt and NUISANCE to neighbors."

Requiring additional payment when the rent is late violates California state law.

You are completely incorrect.

"Late fees and dishonored check fees

"A landlord can charge a late fee to a tenant who doesn't pay rent on time. However, a landlord can do this only if the lease or rental agreement contains a late fee provision."
-- http://www.dca.ca.gov/publications/landlordbook/living-in.shtml

As for the citations of criminal code... you are right, it isn't a crime for someone to have a gun in their leased apartment when the lease says they can. Here's how it works... you agree to pay me certain things in exchange for use of the apartment as your home. $1000 a month, keeping the place in decent shape, taking out your garbage, not playing the radio loud after 11PM, not having a charcoal grill on your balcony without permission, not having a gun in your apartment, keeping your car's registration up to date, et cetera. If you fail to pay me those things that YOU voluntarily, in good faith, without coersion, agreed to pay me... then I can exercise whatever penalty clauses were in the contract. I can have your car towed, have you evicted, charge you extra fees... whatever's in the contract.

Don't want to face those consequences? Don't pay for your home with your rights. Don't whore yourself out by agreeing to give up your 2-a, 1-a, or whatever-a rights as part of the payment for an apartment. That is YOUR choice.

If you do agree to pay something, don't try to fool yourself into thinking it is OK to choose not to honor your side of the agreement. You can't just say, "I don't feel this apartment is worth $1000/mo, I'm only going to pay $800." You can't change the other terms of your lease. All you can do is leave. Even that will involve penalties. Most leases include a provision that you must pay some large fraction of the rest of the lease off to break the contract.

You who want to act as though one of your rights should trump everyone else's rights... it doesn't work that way. You need all of your rights as a package. The right to keep and bear arms is worth nothing if you can't own property. The right to own property is worth nothing if you can't defend yourself. The right to defend yourself is worth nothing if you can't speak... they are a package. You are fools to try to split one off and say it is the only one that really matters.

 

[Ergosphere]

Requiring additional payment when the rent is late violates California state law.

You are completely incorrect.

"Late fees and dishonored check fees

"A landlord can charge a late fee to a tenant who doesn't pay rent on time. However, a landlord can do this only if the lease or rental agreement contains a late fee provision."
-- http://www.dca.ca.gov/publications/l...iving-in.shtml

Well, it's not quite that simple. Check the statutes and case law:

§1671. Validity of Liquidated Damages Provisions
(a) This section does not apply in any case where another statute expressly applicable to the contract prescribes the rules or standard for determining the validity of a provision in the contract liquidating the damages for the breach of the contract.
(b) Except as provided in subdivision (c), a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.
(c) The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from either:
(1) A party to a contract for the retail purchase, or rental, by such party of personal property or services, primarily for the party's personal, family, or household purposes; or
(2) A party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support.
(d) In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

Orozco v. Casimiro (2004) 121 Cal.App.4th Supp. 7 declared "late fees" to be "liquidated damages" under §1671. A summary is given here; also see this.

 

[Ed Ames]

Did you read your own citation?

It says that, in the case of a residential lease of real property:

(d) In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

In other words... if the contract says that you will pay "Actual damages or, if actual damages cannot practically be ascertained, $300" the contract is valid and, unless you can prove that the actual damages were other than $300 (which, one assumes, you would only try to do if the damages were less) you owe $300 if you breach the contract.

 

[Ergosphere]

Orozco v. Casimiro held that late fees are legal only insofar as they are reasonably related to the landlord's losses or costs which are a result of the rent being late. This amount would generally be very small over the course of a few days. A late fee which serves as a penalty was ruled illegal even though it was in the lease agreement signed by both parties.

 

[asknight]

I wouldn't suggest to anyone to sign a legally binding agreement that revoked their basic civil rights.

 

[Ergosphere]

Another ruling...

Harbor Island Holdings, LLC v. Kim (2003)
Liquidated damages provision unenforceable because it bore no reasonable relationship to range of actual damages parties could have anticipated

Orozco v. Casimiro (2004)
Late fee invalid because landlord failed to establish that damages for late payment of rent were extremely difficult to fix.

 

[Ed Ames]

Yeah, that's common to liquidated damages in general... they must bear some resemblance to actual damages or the terms are unenforceable.

Still... admin time at $25/hr min 1 hr. Cost of drafting a letter for a business is well established to be $15 or so. So you can easily ding somene for $40 give or take and every judge will say it's kosher... and you know what? You pay your prop. managers salary so it really doesn't take $40 out of your pocket.

Works fine, perfectly legal, no problem.