Guns found in house by new homeowner.

Discussion in 'Legal' started by Theohazard, May 1, 2018.

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  1. Theohazard

    Theohazard Member

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    (Disclaimer: This is a legal question about a hypothetical situation that occurred to me after reading an article about firearms left behind in a house by the previous homeowner. And let’s assume for the sake of simplicity that these are regular non-NFA firearms and they’re not stolen. [Edited to add: I should have made it more clear that I’m only interested in federal laws regarding this situation; obviously state laws could add more factors.])

    Suppose a new homeowner discovers firearms left behind by the previous homeowner. If the new homeowner decides to take possession of those firearms, is that legally the same as an in-state private transfer? Basically, would the legal principles involved be the same as if the firearms were privately transferred face-to-face by residents of the same state?

    Also, what if the previous homeowner had already moved out-of-state before the new homeowner moved in and took possession of the firearms? Would that count as an illegal interstate private transfer, or would the fact that the firearms were abandoned by the previous homeowner before he moved out-of-state be a factor?

    Just to be clear, this isn’t a question about what the new homeowner should do, this is simply a question about how federal transfer laws would apply to this hypothetical situation. Thanks!
     
    Last edited: May 1, 2018
  2. Legionnaire
    • Contributing Member

    Legionnaire Member

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    Tagging for interest.

    I know your focus is on federal law, but state law might also apply. PA's would in the case of handguns.
     
  3. HankB

    HankB Member

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    It's my understanding that things left behind in a home that's been sold belong to the new homeowner. I remember reading about a new homeowner who discovered a VERY high grade Parker shotgun among the many items left behind in the old home he'd just bought; his attorney assured him that it was legally his since he wasn't a prohibited person and the gun wasn't stolen. IIRC, it later sold at auction for $100,000.

    That was a while ago - these days, state/local laws may be different. As far as purchasing a home from someone now living in another state - I don't know how or if Federal laws would apply for non-NFA items.

    I expect Frank may weigh in and shed some light on this . . .
     
  4. GunnyUSMC

    GunnyUSMC Member

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    In LA. they are turned over the the police as found property. If the guns are not stolen or can be traced back to the owner, after a few month (3 months for my dept.) you can get the guns back.
     
  5. RickD427

    RickD427 Member

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    State law is going to more controlling on this question than federal law, and that means you're going to get 50 different responses.

    As to California, firearms cannot be transferred by a realtor, or otherwise transferred as part of a real estate transaction. If they are found in a building by the new owner, they would be "Found Property." California has two different statutes that apply. The Civil Code requires that any found property over a value of $100 be turned over to law enforcement. If then unclaimed by the owner, the finder has a right to recovery. The Penal Code defines the crime of "Theft of Found Property" that would also penalize the finder, regardless of value.
     
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  6. Frank Ettin

    Frank Ettin Moderator Staff Member

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    I'd want to see some legal authority for that. State laws might differ, but whenever I have bought or sold a home any personal property included was specifically identified in the sale documents. A failure to identify the guns as being included in the sale is strong evidence that the guns were not intended to be included and were therefore lost property.

    Most States have laws dealing with lost property in general (whether a gun or anything else). Although such laws vary, the general theme is that the finder does not immediately become the lawful owner, and those laws often require that the property be turned into the police or that the finder take other reasonable steps to find the owner. For example:

    1. Georgia statute 16-8-6:

    2. Kentucky KRS 514.050:

    3. California Civil Code 2080 -- 2080.1:

    The fact that the property is a gun can create further complications. A few States have strict rules regarding the possession of firearms. For example, in New York State one may not lawfully possess a handgun without the necessary license.

    So to be sure of being on solid legal ground, the best idea would be to leave the gun where you found it, watch over it to be sure it's not disturbed, and contact local law enforcement to come and pick it up. If there was any possibility that the gun was used in a crime, law enforcement would probably want the gun left in situ in case there might be other evidence in proximity.

    So depending on state law regarding the finding of lost personal property, if the new homeowner just assumes ownership of the guns he might well be committing theft (or the tort of conversion).

    The point is that in general the law is not, "finders-keepers." The owner of a thing isn't necessarily immediately stripped of legal title (ownership rights) to a thing if he mislays or loses it. So if you find something, you can't necessarily immediately consider it yours to keep.

    I haven't done a thorough survey of the laws of all the States. I suspect that most have laws along the lines of those of Georgia, Kentucky, or California that I cited above. And in the case of a gun I think one must always consider the possibility (albeit perhaps slim) that it was "lost" on purpose because it was used in a crime.

    The Gun Control Act wouldn't necessarily be an issue. When the prior resident of the house lost the gun, before he moved away, he was a resident of the State in which the house is located. If the new inhabitant is moving in to make the house his home, he is becoming a resident of that State for the purposes of the GCA (unless he's only moving in during a temporary visit).

    But the core issue seems to me not to be state or federal transfer laws. The core issue is that found property might not necessarily belong to the finder.

    Specifically PC 485:
     
  7. Theohazard

    Theohazard Member

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    Thanks, Frank. So it sounds like worries about the legality of the transfer under the GCA are far down on the list. I figured there would be other local and state issues involved, but I was wondering how federal transfer law would apply in this situation since the firearm didn’t change possession directly.
     
  8. BSA1

    BSA1 member

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    Are all items left behind in a house after it sold all considered to be lost?

    Or it is abandoned? Sellers are known for leaving items behind they don't want to mess with moving due to it's size, difficulty in moving, etc. Can the seller come back two weeks or months later after the title is transferred and claim ownership of the microwave that was left behind? Or maybe the big freezer that is in the basement?

    A fine point that makes a big difference in claiming property.
     
  9. HankB

    HankB Member

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    Sales of residential property can include a clause to the effect that "house and contents" are being sold. Sometimes the "contents" are explicitly called out (e.g., oven, refrigerator, washer and dryer) and sometimes they aren't. (I sold a house and left behind a storage cabinet and workbench - AFAIK the buyer is still using them.) There MAY have been a "house and contents" clause in the case I mentioned earlier in this thread involving a Parker shotgun - I recall reading the house was FULL of "stuff" when it was sold, possibly as part of an estate. So . . . couldn't the terms of the sales contract impact the status of found, lost, or mislaid property?

    Of course, state/local/federal laws would still apply, and with 50 different states, it would seem to be smart to consult someone knowledgeable (e.g., a competent local lawyer) about the specific laws that apply wherever this might happen.
     
  10. ilbob

    ilbob Member

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    IIRC, the "standard" quit claim deed form in Illinois only covers the real estate itself, and explicitly says so.

    Usually if appliances and other things are included in the sale it is covered in a separate document.

    If people abandon the property it is kind of assumed by most that they no longer want it and the new property owner is free to do with it as he sees fit. It could be that in a legalistic way that is not true though. I would not be all that worried about some spare change one might find. But a firearm is a little different, especially since it may have a serial number on it. I would be inclined to carefully research just what the terms of the sale included and perhaps get some legal guidance. The problem with this approach is that by the time you just talk to your lawyer about it you end up spending more than the firearm is likely worth.
     
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  11. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Is that different? How is abandoned different from lost? In what States? How are they treated different legally in different States? Cite legal authority.

    Are they really? By whom? Certainly not by me. If someone left behind something like that we didn't make part of the deal and I don't want, he's going to have some problems.

    I always do a quick inspection before closing to make sure everything I intended to buy is there and anything I didn't intend to buy isn't -- as well as to make sure all the contingencies relating to the condition of the property have been met and that the property is ready to be moved into. Don't others do that? Don't you do that?

    If the microwave is a builtin, it's part of the house. If I didn't intend to buy the freezer in the basement (or the non-built in microwave) and therefore include it in the sale documents, the seller is going to be hearing about it right away and either getting it out or paying me to have it hauled away and disposed of.

    How exactly? Cite legal authority.
     
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  12. Jerseykris

    Jerseykris Member

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    Even if the home seller moved out of state, if the new buyer is from out of state, whatever, the Federal Transfer laws don't necessarily apply in this scenario, the guns aren't being transferred across state lines, a sale/purchase isn't being made, the guns are domiciled in a particular state, remaining within that state. State laws will be a bigger concern over anything federal.

    Speaking for NJ only - Title 46:30C-1 Definitions - Abandoned property is property of which the owner has intentionally given up possession under circumstances evincing intent to give up ownership - vs. Lost property is property the possession of which has been parted with casually, involuntarily, or unintentionally; or which has been mislaid, left or forgotten.

    I imagine other states make similar distinctions.

    So if this were NJ, before you get to the question of whether the guns can be legally claimed by the homebuyer under firearms laws, the question of lost vs. abandoned must be settled. The language of the sales contract w/attachments with regard to personal property would be controlling.

    If the contract is silent on this issue, 46:30C-4 has the steps to take, but in a nutshell says the buyer can claim the property after a 'good faith effort' is made to return Lost property to the owner.

    If no issues there, NJ law says as long as the guns are legal to possess in NJ and the persosn receiving the firearms aren't prohibited under Section 2C:58-3c (akin to inheriting them) you are likely good to go.

    Contrary to popular belief, NJ does not require registration of firearms (If you were purchasing a handgun, the application filing is considered de-facto registration) but NJ has voluntary registration, which sounds scary but is useful for i.e. insurance purposes, if they are ever lost or stolen and later turn up in a crime with your fingerprint on the magazine, etc.

    The Firearms Purchasers ID does not factor in as no sale/transfer is taking place.
     
    Last edited: May 2, 2018
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  13. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Excellent. And that of course means, as you properly explain, somehow whether found property was abandoned or lost by the owner would need to be determined. Found property isn't tagged, "lost" or "abandoned."

    There might be some State-to-State variation, but certainly the sales contract will be important evidence.

    Effectively unless the property is unequivocally abandoned, the default is to treat it as lost.

    And thank you for your insights on New Jersey law.
     
  14. jonnyc

    jonnyc Member

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    You're in PA, PA law is at issue, not Fed. At closing, you took possession of the house and all its contents, unless some item was specifically listed......hypothetically.
     
  15. Frank Ettin

    Frank Ettin Moderator Staff Member

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    And do you have some legal authority to cite to support that little tidbit? On what legal grounds could the buyer claim that be bought anything not stated in the contract of sale or the deed?
     
  16. danez71

    danez71 Member

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    Not to derail the thread, but .....

    Real-estate contracts have a few personal property items built in to the boiler plate document. Typically fridge, washer, dryer, and window treatments that aren't attached such as hanging curtains.

    Any other personal property should be handled outside of the real-estate contract in a separate doc. In fact, a good real-estate contact, such as all of the states associations of REALTORs use, all state that the contract is for real property only (and somewhat contradict themselves by having the fridge washer dryer in the boiler plate)

    Some lenders won't even fund if other substantial items are listed. FHA and VA loans are pretty strict about it.

    Any agent that isn't lazy, somewhat knowledgeable, and takes agency laws and real-estate contract laws seriously.... and not put their commission check as 1st priority... will tell you the same thing and do it right.

    Heres a little article. http://naplesrealtyattorney.com/index-3.php?q=5
     
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  17. jonnyc

    jonnyc Member

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    "And do you have some legal authority to cite to support that little tidbit? On what legal grounds could the buyer claim that be bought anything not stated in the contract of sale or the deed?"

    Did you ever buy a house in PA, or attend a closing? I have, 4 times, and I've read the sales agreements. Your CA experiences, laws and rulings are totally irrelevant.
     
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  18. Frank Ettin

    Frank Ettin Moderator Staff Member

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    You haven't answered the question, nor have you provided legal authority to support your contentions, In the past you've demonstrated a very poor grasp of legal points.

    So exactly what to Pennsylvania residential home sales agreements say about personal property in a purchased home? Indeed, I note that in the standard form real estate sales agreement approved for use by the Pennsylvania Association of Realtors under paragraph 7 personal property and fixtures permanently attached to the property are included in the sale, and a blank space is provided for the listing of any other items of personal property intended to be sold with the house.
     
  19. GunnyUSMC

    GunnyUSMC Member

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    It was already stated that laws very from state. Look up PA. State laws and you will find your answer.
    Now ain’t that better then “And do you have some legal authority to cite to support that little tidbit? ”
    But I’m not a lawyer, just a guy that enforcers the laws within the state I live in.
     
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  20. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Phooey!

    If someone makes a claim about what the law is, it's his job to support that claim with citation to relevant legal authority. It's not our job to do the research to try to figure out if he's right.

    No you're not, but I am.
     
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  21. jonnyc

    jonnyc Member

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    And in the past, and currently, you have demonstrated extremely rude and bullying behavior that one would consider to be inappropriate for a moderator. But hey, I usually just shake my head and move along. You, on the other hand, continue with your confrontational style of "moderation".
    So, who's the bad guy here? My guess is the guy who wields the big rude moderator stick. Do your worst......the internet is a big place.
     
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  22. Frank Ettin

    Frank Ettin Moderator Staff Member

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    The thing is that when people post bad information about legal issues there's the risk that someone will pay attention to that bad information and get into trouble because of it. When someone persists in posting bad information and continues to be unable to support that information with documentation, that unsatisfactory situation is exacerbated.

    That's why we say in the THR Legal Forum Guidelines:
     
  23. SharpDog

    SharpDog Member

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    IMHO If only lawyers can post in this section, it should be reduced in visibility from the main forum menu commensurate with the percentage of members that are lawyers :)
     
  24. Frank Ettin

    Frank Ettin Moderator Staff Member

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    As a matter of fact a lot of people who aren't lawyers make very useful posts in this Forum. You might try reviewing some of the threads in this Forum and look at many post by non-lawyers and ask yourself what is different about what they post compared to what you post. For example, in this thread post 5, 12, and 16 by non-lawyers added to this thread.

    In other thread significant contributions to the discussion are often made by non-lawyers. Sometimes they've done some actual research. Sometimes folks who really want to learn ask questions that help focus the discussion. Sometimes folks have some good information to impart.
     
  25. CapnMac

    CapnMac Member

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    Well, presenting an ad hominem argument hardly propounds your position. neither arguing from the specific to the general. It functionally negates your forensic position.

    The last sentence is also the crux of it. The internet is forever, which include the bad, the incorrect, the flat-out wrong as well as the good, the accurate, the established facts. But, sadly, neither of those extremes are, in fact, so labeled. The internet is far to easy to "cut and paste" to suit a given opinion, proposition, or belief.
     
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