Sub-Div Weapons Ban = Legal Y/N?

[Zedicus]

Got to thinking of possible stunts anti's could pull and thought of this one after raising some hell with my Subdivision Association.

Would it be Legal for a Subdivision Association to ban possession of Weapons from the premises of the entire Subdivision?

I thought of this because my Subdivision Association seems to get away with practically anything.
(It's ran by a sour faced old biddy fyi)

 

[Bezoar]

if its a membership type of subdivision with all the rules such as:
-any damaged shingle shall be replaced with an identical one from the same manufacturing company
-your grass must be x inches tall and cut twice a week.
-no pets without prior approval, and no more then 2 pets per household

Then theres a good reason they can put it on the books. However they would have no legal reason to search your house. You may be in the subdivision, but you do OWN the house right? IF its your house with your name on the title so to speak, then they cant evict you or o a search without a police warrent and 5 LEO to conduct said search.

However thats what happens in a logical world, so read the complex byrules when you can. If no rules are availabe, then have all the guns you can legally posess by state and federal law.

 

[birdbustr]

I don't see how it could be enforced even if it was in the Home Owner's Association agreement. Our HOA can't even keep people from parking along the street.

 

[TexasRifleman]

2 things I guess.

1) If you knew about it ahead of time and agreed to it then it's a legally binding contract I'd think.

2) How is anyone going to know if you violate it?

 

[MiddleAgedKen]

IANAL, but I don't see how they could make it enforceable against any existing homeowner. A restrictive covenant for future buyers might be another matter.

 

[Zedicus]

2) How is anyone going to know if you violate it?

Snitch's, Someone seeing you buying Ammo, Newspapers Publishing Names and addresses of CWP Holders (in states that they can get the lists) etc...

as a side note I wish I could find a way to opt-out of my HOA, for the fees I pay, nothing really ever gets done with them except lining the pockets of the HOA Comitie....
(heck, they won't even de-ice the roads when it gets bad)

 

[Samuel Adams]

For those of us who respect the US Constitution in its original intent, this would certainly not be legal.

 

[GuyWithQuestions]

I live in Utah. The state code says a resident can keep a loaded firearm at their place of residence, even a temporary place of residence such as a camp. Under the code where it says a private property owner can stop others from bringing firearms onto own property, it has a special provision saying that a landlord can't stop a tenant from bringing a firearm onto the rented property. I know that in a lot of states, a landlord can't go onto their own rented out property without the tenants permission, even if they're given permission in the contract. If the landlord violates this, the tenant can get the landlord for tresspassing on private property, even though it's owned by the landlord because they gave away that right when they rented out the property. The tenant may not own the property, but owns the use of the property and has all the rights and priveleges that a land owners would as long as they don't do damage to or physically alter the property. My guess with a sub-division is things like shinges, etc, affect what it looks like on the outside, but if someone decides to own books, refridgerators, firearms in the inside, as long as it doesn't affect the looks of the property I would guess the government wouldn't support the sub-division's policy if the person isn't doing anything illegal. There are many restrictions on what they can restrict. I also know that although some sub-divisions and even apartments say no satellite dishes for satellite tv, that's a definite NO NO. The federal government websites say so and everywhere else says that they can't say you can't have a satellite dish, they can only restrict you from putting a satellite dish in certain types of areas (such as drilling holes into a roof) but not others (a stand on the grass or device that clamps onto balcony railings, etc). Just like there's affirmative action, they have a federal law that makes it so it's fair for the satellite tv companies just like the cable tv companies. So the only way they could prevent you from having a satellite dish is if the only places with a direct line of site happen to be where they can legally restrict you on property, then you'd be out of luck and forced into cable tv. I'd check into laws about the issue of firearms. I'd be surprised in a place like Idaho if they could get away with it.

 

[Winchester 73]

Florida has a strict pre-emption Statute on the books since 1987.
I don't think it would be legal here.Cities and counties have lost battles over gun storage laws,trigger locks and the like in FL for 20 years, much less an old biddy in a sub-division waging VPC like war!
I doubt it would be legal in your home state of Idaho which also has state pre-emption.

 

[Sam Adams]

My short answer is that a HOA could NOT ban weapons, not to existing nor to prospective residents.

1) If you knew about it ahead of time and agreed to it then it's a legally binding contract I'd think.

I certainly understand the principle of voluntarily giving up your rights, e.g. giving up your right (expressly or by implication) to sue someone for assault if you decide to have a boxing match.

However, when it comes to Constitutional rights, I'm not so sure. Can a HOA make you sign a complete waiver of all of the rights in the BOR? Would they be able to torture you after finding a gun during a warrantless search? I somehow don't think so - because, after all, HOAs have NO authority except under state statutes. They are, therefore, subject to the same restrictions as would apply to any other law.

That last sentence explains why the Heller case is so important - because if we win this case, fairly shortly afterwards you'll see an incorporation case.

 

[ozarkhillbilly]

If you look at HOA cases, the HOA frequently wins in local court only to have the vast majority of their wins turn to losses in higher court. So the basic answer is that if a person is willing to fight long enough and high enough they will beat a HOA on almost anything. The key is be willing to fight and have the money to fight.

 

[Animal Mother]

I don't know if its legal or not, but I was going to stay at a condo within a subdivision at Fairfield Plantation near Villa Rica, GA. As I was leaving the gated entrance I noticed a huge signed that read something along the lines of "Absolutely No Concealed Weapons Allowed Per Homeowners Association." That right there was enough to make me decide to spend my money, and week's vacation elsewhere.

 

[Frog48]

However, when it comes to Constitutional rights, I'm not so sure.

Many homeowners associations prohibit the display of advertising. Example: my parents neighborhood forbids real-estate "for sale" signs, political candidate signs, etc.

Thats clearly a restriction upon your 1st amendment rights... so its not much of a stretch to think that HOA's might try to infringe upon other Constitutional rights.

 

[SageMonkey]

I would think states which prohibit local preemption would find this type of ban had no legal standing.

As a side note, a neighborhood where not a single residence has a firearm = burglars dream. Would the neighborhood association post signs at the gate, just to let the crooks know?

 

[precisionshootist]

If you look at HOA cases, the HOA frequently wins in local court only to have the vast majority of their wins turn to losses in higher court. So the basic answer is that if a person is willing to fight long enough and high enough they will beat a HOA on almost anything.

I'm not sure where you are getting your information or in which state you may be applying this information but in Texas this is definately not the case.

One seldom wins in court against HOA's and the reason is that when you buy into a subdivision with a mandatory HOA you sign a private contract with the subdivision. This private contract all but nullifies your ability to sue in court and win. In the state of Texas HOA's have the ability to place a lien on the property and then force foreclosure, even for very small amounts of money. This happens nearly every day in the state of Texas. It is also one of the most egregious and widespread assaults on constitional rights in modern times. If you think the assault on the 2nd amendment is bad, try reading up on mandatory HOA's and it will make your skin crawl.

 

[GuyWithQuestions]

Many homeowners associations prohibit the display of advertising. Example: my parents neighborhood forbids real-estate "for sale" signs, political candidate signs, etc.

Thats clearly a restriction upon your 1st amendment rights... so its not much of a stretch to think that HOA's might try to infringe upon other Constitutional rights.

I may not be correct, but I would say that advertising is something that affects how the homeowner association's neighborhood looks. That's why I would say they can have restrictions on shingles, banners, etc. However, I would guess what's inside your home is different as long as it doesn't affect the neighbors. If a homeowner association says that you can only have a DVD player in your living room and can only watch DVDs between certain hours, can they really legally get you into trouble if you also have a DVD player in your bedroom, etc? Housing contracts don't say, "We can kick you out at will whenever we want" and most states that I know of have rules where if someone objects their case has to go before a court before they can be legally kicked out.

 

[precisionshootist]

If a homeowner association says that you can only have a DVD player in your living room and can only watch DVDs between certain hours, can they really legally get you into trouble if you also have a DVD player in your bedroom, etc?

If this was passed by the HOA I'm not sure what would stop them. I think that would be stretching the boundaries and I don't think it would stand up but still I don't see what’s to stop them from making this a rule.

I remember a news story just recently about an HOA trying to ban weapons so I think the scenario by the OP has already happened. Maybe someone can come up with a link.

 

[kwelz]

HOAs are the equivalent of a local extortion ring. They set themselves up as a local government without any of the normal constitutional requirements of a real Government body. Sadly they can put in just about any restriction they want and if you don't abide by what they say they can fine you, sue you, and in some states even force the foreclosure of your house.

Please never live in a neighborhood with an HOA

And here is a link to the HOA that banned firearms
http://www.newschannel5.com/Global/story.asp?S=6242822

 

[Ed Ames]

I have been trying for more than 20 years now to figure out why anyone would buy a house (or home of any sort) with a HOA or pretty much any restrictive covenant. A friend of mine once showed me the binder, a huge 5" (largest you can get) 3-ring binder stuffed to overflowing, that was the contract he agreed to when he bought his house. "Did you read this?" "No...."

The answer is that covenants (and by extension homeowner's association rules) are not laws and they can (you could argue that they always) restrict otherwise legal activities. It is legal to paint your house fuchsia. It is just a violation of your agreement with the sellers of your home (and by extension with the HOA) to do so. The HOA cannot arrest you for painting your house fuchsia, but they can make your life miserable. Same for guns if they want to go that route. They can't arrest you but they can take your house and cost you a lot of money.

The scope of covenants (and by extension HOAs) is limited in two ways.
1) Does the contract violate state/federal police powers?
2) Can a court enforce the contract?

Police powers are what give you zoning laws, FCC regulations, environmental protections, etc.. If your homeowner's association demands that you do something that goes against building code, FCC regs, or the like that requirement is unenforceable but they can make your life miserable anyway.

The other side should seal it. Courts can't enforce a contract if the result would be a violation of the constitution. The area this has played out for the good in the lifetimes of some people on this list is in racist covenants. Hard to believe today but at one point people actually tried to write into a covenant that the new owner of a property couldn't sell to anyone of a different race. The courts took one look at that and said "we can't enforce this, it would violate the 14th!" Of course, that's what should happen with an anti-2A covenant. "We can't enforce this, it would violate the 2nd!"

Of course, since we've accepted "reasonable restrictions" to our rights instead of accepting the consequences of exercising our rights (in other words, we accept that we can't yell "fire" in a crowded theater instead of saying we can yell fire anywhere we want and if people are injured as a direct result those injuries are our responsibility), don't count on that.

 

[ctdonath]

Increasingly, HOAs are a legal requirement imposed by the local government on any housing developer. In many areas, you don't really have a choice.

If HOAs are thus required by law, then surely the HOA "laws" are subject to Constitutionality: the local government can't just foist off what it can't enact onto requiring private groups to implement.

I submitted to an HOA-encumbered home because that was one of many compromises I had to make to get a home period (few homes are perfect). Immediately I joined the HOA board to make sure I had a say - not just one vote out of 148, but one vote out of 5. Most HOAs seem under-staffed, and are happy to get _anyone_ on the board; if unable to join the main board, there are usually subcommittees that also have suitable influence.

Certainly, avoid HOAs if you can.
If you're subject to one, stop whining and get on the board. It is your chance to both be part of what is effectively a local government, and to resist community meddling & socialism.

 

[romma]

This is the way the world is moving... Developers buying out huge tracts of land and then dictating to people who want to live there, what they can and cannot do.

For convienence, most people that want to live in a nice, clean, shiny and new develpment go along with it.

Eventually if enough of these types of develpments take root, then that type of infringed lifestyle will be the norm all over.

 

[DFW1911]

I say no...but it does sound like a great way NOT to sell houses if that's your gig

If for some reason this was enforceable I know many homes that would be vacant right now.

Take care,
DFW1911

 

[Javelin]

If you think this would be legal just step back mentally for just a sec and think to yourself;

A nice neighborhood that bans guns and is advertised as "GUN FREE HOMES" (even at 2am). Now who in their right mind would say sure lets move there. Sure Hillary and Sarah might... but I said *right mind*.

HAHA.

ROFL

The end.

 

[rbernie]

Increasingly, HOAs are a legal requirement imposed by the local government on any housing developer. In many areas, you don't really have a choice.

If HOAs are thus required by law, then surely the HOA "laws" are subject to Constitutionality: the local government can't just foist off what it can't enact onto requiring private groups to implement.

While HOAs enjoy the sanctioning of the local gubb'mint, they are still private enterprises. As such, they enjoy the same legal protection as any other private entity, namely the ability to implement 'reasonable restrictions' within their domain. They effectively can be viewed as landlords, as far as I can tell.

 

[jad0110]

A quote from the aricle posted by Azizza,

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.

Kind of contradictory. How does the HOA banning guns in a neighborhood keep criminals out??? I guess the residents think that criminals like to get shot or something? Geez, by that same reasoning Ted Nugent's house must be under constant 24/7 assault!