What If HOAs Prohibit Gun Ownership?

[Mad Man]

This is sort-of related to "Can HOAs Ban Guns?" -- a recent story about an HOA in Texas that prohibited a home-based firearms business -- and "Can HOAs Ban Guns? Part 2" (a response to Part 1 being locked). But since this is more of a hypothetical situation, I figure it is a separate topic.

Imagine sometime in the future, when the Second Amendment is actually enforced, and federal, state, and local governments cannot infringe on the right to keep and bear arms. What's an out-of-luck gun control lobby to do?

One possible target for their efforts would be homeowners associations, which govern the lives of 60 million Americans (1/5 of the population).

Since HOAs are private corporations, the Second Amendment does not apply. What happens if/when HOAs start banning guns?

The following is shamelessly copied from a comment at Evan McKenzie's blog.

Dear HOA Board of Directors:

As you are aware, there have been several incidents of violence, including shootings, directed at HOA board members and homeowners in recent years (e.g., the shooting death of Rita Hohmeier in Franlink Park, IL, and the fatal shootings at the Ventena Lakes HOA meeting).

Scientific statistics compiled by the University of Anglia’s Gun Research Unit (GRU) show that most people are shot by somebody they know, which means that you are at greatest risk from other home owners within your community who own guns.

Although our lawmakers will not stand up to the gun lobby, and refuse to curtail the easy access to guns in this country, you can do something about this problem and protect yourselves.

HOAs have the power of small governments, but are shielded as corporations. Therefore, recent court rulings that erroneously refer to the second amendment as an individual right do not apply to your association. You have it within your power to amend the rules of the HOA to prohibit privately owned firearms in your common interest community.

In exchange for the benefits of common collective ownership, the residents elect a legislative/executive board and delegate powers to the HOA board. The courts have ruled that "The restrictions on the use of property in any common interest development may limit activities in the common areas as well as in the confines of the home itself" (Nahrstedt v . Lakeside Village Condominium Assn. (1994) 8 Cal.4th at p. 373).

In theory, such a change to the rules prohibiting firearms would require approval of the homeowners. However, in practice it is easy for an HOA board to produce the desired outcome of a homeowner election using perfectly legal methods, without resort to outright fraud. It is also possible to have the courts approve changes to the HOA rules without a vote by the members of the association.

If HOA home owners are eventually turned into renters — as has been proposed — then such a "no guns" policy change would be even easier.

Because HOAs are private corporations, many conservatives, libertarians, pro-business organizations, and private property advocates -- even those that normally support gun ownership -- will not oppose such a new policy. Their position is that HOAs can do whatever they want, since (1) the members voluntarily waived their rights, and (2) the interests of the HOA corporation take priority over the interests and rights of individual home owners. To them, HOA rules are simply a private contract matter between the HOA corporation and an individual home owner, and they have no desire to interfere with what they believe to be a free market.

The benefits of turning your community into a privatized gun free zone are twofold: (1) board members, and other home owners, would be protected from gun violence, and (2) the HOA would have another source of revenue, by levying fines against those home owners who insist on clinging to their guns, and seizing their homes through non-judicial foreclosure after fines and legal fees are imposed.

If you are interested in implementing such a change, our lawyers would be more than willing to assist you. Or, if you live in a municipality sympathetic to our goals, we can put you in touch with the city’s mayor and legal office.

If you are not interested in banning firearms within your HOA, we will be contacting your management company and attorney. We suspect they will be more sympathetic to our proposal, and may be able to act without your approval to make your common interest community a safer place.

Sincerely yours,

The Gun Control Lobby

The only place I can see where the above comment got it wrong is the statement that "such a change to the rules prohibiting firearms would require approval of the homeowners." While amendments to CC&Rs usually require some type of super-majority vote of homeowners in an HOA, the Board of Directors in most HOAs have the power to unilaterally enact other rules and regulations not specifically addressed by the CC&Rs. This was discussed in "Can HOAs Ban Guns?" and "Can HOAs Ban Guns? Part 2"

 

[MachIVshooter]

They are incorrect. An HOA may tell you what colors you can paint your house, what type of lanscaping material is allowed, how many cars you can park outside, etc. But they cannot infringe on your constitutional and civil rights. They can no more restrict private firearm ownership than they can prohibit minorities from buying a home. To do so would land them in court, and they would lose. Guaranteed.

The case that the author cited as proof that "The courts have ruled that "The restrictions on the use of property in any common interest development may limit activities in the common areas as well as in the confines of the home itself" (Nahrstedt v . Lakeside Village Condominium Assn. (1994) 8 Cal.4th at p. 373)." Concerns co-owned real properties (condominiums), in which one owner/tenant wants to do something that is against the wishes of the other, creating a conflict between two people with equal rights to a shared property. The ruling also is about a satellite dish; Not something we have a constitutional right to.

Here is the whole text of that part of the brief:

Further, the Court at 373 states:
The viability of shared ownership of improved real property rests on the existence
of extensive reciprocal servitudes, together with the ability of each co-owner to
prevent the property's partition. . . . The restrictions on the use of property in any
common interest development may limit activities conducted in the common areas
as well as in the confines of the home itself . . . Commonly, use restrictions
preclude alteration of building exteriors, limit the number of persons that can
occupy each unit, and place limitations on..or prohibit altogether..the keeping of
pets.
The Court also cites with approval the Florida Court in Hidden Harbour Estates v.
Norman (1970) 309 So.2d 180 which stated:
"nherent in the condominium concept is the principle that to promote the health,
happiness, and peace of mind of the majority of the unit owners since they are
living in such close proximity and using facilities in common, each unit owner must
give up a certain degree of freedom of choice which he (or she) might otherwise
enjoy in separate, privately owned property. Condominium unit owners comprise
a little democratic sub society of necessity more restrictive as it pertains to use of
condominium property than may be existent outside the condominium
organization."
Also, we recognize that restrictions sometimes clearly conflict with sound public poli~
and should not be enforced. The Nahrstedt Court agreed and also pointed to She11ey v. Kraemer
(1948) 334 U.S. 1 at 381, it said:
"This rule does not apply, however. when the restriction does not comport with
public policy. (Ibid.) Equity will not enforce any restrictive covenant that violates
public policy. (See Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161 (racial restriction unenforceable).
That is precisely the point we wish to make. No such public poli~ was enunciated in
Section 207 to eliminate all property rights to give a "viewer" rights with respect to property he
or she does not own individually. Clearly, if Congress had intended to override such property
rights, it would have clearly expressed it. It did not and as other commentators have noted and
briefed. any usurping of such property rights must be narrowly construed. Even if Congress had,
which it did not. such may be unconstitutional
3
However, regarding the ruling in Texas, they can restrict the type of home-based businesses you may run. It is within their power to say you can't have a home gun store, same as they could say no home based medicinal marajuana farming or automotive repair, etc. The reason for this is not so much the nature of the business itself, but the heavy traffic it brings down a residential street, creating dangers for residents and parking nightmares.

 

[Mad Man]

But they cannot infringe on your constitutional and civil rights. They can no more restrict private firearm ownership than they can prohibit minorities from buying a home. To do so would land them in court, and they would lose. Guaranteed.

HOAs cannot prohibit minorities from owning homes because the U.S. Supreme Court ruled in 1948 that it was unconstitutional to do so (see here and here).

What law or court ruling prohibits HOAs from banning firearms?

As for the Nahrstedt v . Lakeside Village Condominium Assn. case -- the parties themselves were in a condominium. But the ruling applies to Common Interest Developments, which also include single family housing HOAs. I have read nothing in that ruling that restricts it to condominiums only.

From a legal point of view, it does not matter whether the home in a Common Interest Development (CID) is a condo or a single-family dwelling.

Now that property values have risen so much that many hardworking families can't afford a traditional domicile, they buy the closest approximation they can pay for: a condo, a townhouse or a "single-family home" in a new "planned development." If the complex has any shared property, such as landscaped grounds, a pool or even a small strip of trees, then it's by definition a common-interest development (CID).

-Carol Lloyd
"The Myth of 'Privatopia'. Do Private Residential Governments Mean The End of the American Dream?"
December 17, 2002

California Civil Code §1351 (c) defines "common interest development" as any of "(1) A community apartment project. (2) A condominium project. (3) A planned development. (4) A stock cooperative."

California Civil Code §1351 (k) defines "planned development" as "a development (other than a community apartment project, a condominium project, or a stock cooperative) having either or both of the following features: (1) the common area is owned either by the association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area. (2) A power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment which may become a lien upon the separate interests in accordance with Section 1367."

-Public Law Research Institute
University of California Hastings College Of The Law
"Common Interest Developments"

UPDATE: In the original thread, I cited the story of a Florida couple whose HOA threatened to enter their single-family home to remove a sign.

A South Florida couple said their homeowners' association has threatened to break into their home to remove a sign posted in a window

Bill Elliot and his girlfriend, Mary Ann Frye, bought a single-family home in Aruba at the Oasis in Homestead in 2007.
....
A letter from Association Law Group said, 'Should no one be home at the time the Association comes, the services of a locksmith will be utilized and you will be responsible for the cost.'
...
But Local 10 has discovered something Elliot and Frye didn't know. According to the by-laws that govern the neighborhood, which Elliot signed when he bought the house, the association does have the right to enter his property and remove any violations after a written notice.

-WPLG Local 10
"Resident: HOA Threatens To Break Into Home"
January 5, 2010

 

[russ69]

Banning a home based business is a lot different than banning gun ownership. Rules inside the walls of your condo are few. Most rules in the CCRs deal with common property/and not disturbing the other owners. Could it be passed? Maybe, but it's had to get a super majority on just about any issue and a single threat of a lawsuit would kill it quick.

Thanx, Russ

 

[Mad Man]

However, regarding the ruling in Texas, they can restrict the type of home-based businesses you may run. It is within their power to say you can't have a home gun store, same as they could say no home based medicinal marajuana farming or automotive repair, etc. The reason for this is not so much the nature of the business itself, but the heavy traffic it brings down a residential street, creating dangers for residents and parking nightmares.

The original story clearly states that Andrew Clements was "running an Internet business where no customers come to his house and nothing he does is visible to his neighbors."

 

[Salty1]

I run a home based firearms business, the ATF required a letter from the HOA stating that they are aware of the business and have no by-laws against it. My wife and I went and met with the HOA and did a presentation to them regarding our business model, as was mentioned their biggest concern was traffic and parking issues. I informed them that it would be by appointment only and if an issue developed I would immediatly deal with it to their satisfaction. The products I was selling did not appear to have any bearing, traffic and safety of the children was most important to them. They were concerned about ammunition being stored, when informed that I would not be selling ammo their was relief on their faces. Within an hour of the meeting they called and we returned and received the approval letter. Lesson learned, do your homework, give the HOA Board a complete honest overview of your business, and tell them that you will generate less traffic than the lady down the street who sell's Tupperware and Avon products..... They can turn you down for no reason, just their rights as members of the board.... just smile, be pleasant and do not focus on your products, focus on the business..... then make sure all customers leave with their guns properly packaged....

 

[Torghn]

In Utah a landlord cannot ban a tenant from owning a firearm or decline to rent because of it. There's no way an HOA could.

 

[Buck Snort]

I suspect the Heller decision has a bearing on this issue.

 

[Mags]

Maybe those who belong to HOAs should become more active, maybe volunteer for the board of directors? The HOA is what you the homeowner make of it.

 

[wishin]

I refuse to believe that all it takes to deny one's Constitutional rights is to become a private corporation such as an HOA.

 

[Mad Man]

I suspect the Heller decision has a bearing on this issue.

Heller does not apply to private corporations -- which is what HOAs are.

In Utah a landlord cannot ban a tenant from owning a firearm or decline to rent because of it. There's no way an HOA could.

Only if the same protections that are applied to renters are applied to homeowners governed by an HOA. I'm not familiar with Utah law, but I highly doubt that the case.

Banning a home based business is a lot different than banning gun ownership.

So when the Clinton administration drove 70% of FFL dealers out of business, [strike]it was no big deal[/strike] that was not part of his effort to eliminate gun ownership (by choking the supply)?

Maybe those who belong to HOAs should become more active, maybe volunteer for the board of directors? The HOA is what you the homeowner make of it.

HOAs are great in theory. It's just that people aren't good enough for them.

Your claim assumes that HOAs are governed fairly, and their elections are conducted fairly.

(Evan McKenzie, a former HOA lawyer) says that, unlike with city governments, which ostensibly must follow democratic laws of governance, HOAs are woefully unregulated. Sometimes the boards simply vote themselves into perpetual power, since they can prevent opponents from voting or running for election by suggesting that the upstarts are not in good standing with the HOA. Or, as McKenzie put it, "These elections can make Broward County look like the epitome of fair voting."

-Carol Lloyd
"The Myth of 'Privatopia.' Do Private Residential Governments Mean The End Of The American Dream?"
December 17, 2002

This happened to somebody I know -- he tried to run for the Board of Directors, and was told he was ineligible because of some outstanding issue. Two weeks after the election, they told him they made a mistake. [edited to add: he was also suing the HOA at the time over another issue, so the Board of Directors did not like him. He eventually won his case].

But I'm just some guy on the internet writing under a pseudonym, so take that claim with the appropriate grain of salt.

But there is also the experience of Barbara Hogan, whose "Texas HOA Issues" web site explains what's wrong with the HOA system.

Since 2002 I have attempted to make fair and democratic changes to my own homeowners' association, Nottingham Country Community Improvement Association (NCCIA). Nottingham Country is located in Harris County between Houston and Katy. The group of homeowners I joined forces with could not overcome the obstacles and underhanded roadblocks utilized by the HOA board, attorney and management company. For several years I maintained a website to help my neighbors learn about the problems. As a result of the website I spoke with many people across Texas and across the United States.

I quickly realized that amending the Texas Statutes is the only way changes could be made in my neighborhood. I have testified at Texas legislative hearings in Austin regarding HOA issues since 2003 and was appointed by Senator West to the Senate Intergovernmental Relations Committee panel to review the Texas Uniform Planned Community Act (TUPCA) in 2006.

Without any "Bill of Rights" type protections, homeowners are left at the mercy of the benevolence of their Directors, with their only hope being that the "right" people are in charge.

 

[Mad Man]

I refuse to believe that all it takes to deny one's Constitutional rights is to become a private corporation such as an HOA.

It also takes a contract, in which one party waives their rights. It does not matter how ill-informed the consent is, or how small the print is, how little choice the market offered, or even if the contract was amended after the fact by one party if the contract allows for it.

Think about how many of your constitutional rights your employer is required to respect.

This may explain why everyone who was so up-in-arms about the Kelo eminent domain abuse is silent about what happened to U.S. Army Captain Michael Clauer while he was deployed in Iraq, since it was a private corporation that seized his home.

Anyway, your comment get tgets us back to the issue, which I have been trying to figure out, but nobody has provided a definitive answer for.

1. Are there any laws, or court rulings, that would prohibit an HOA corporation from enacting a gun ban?

What if instead of a ban, you were required to register your guns with your neighborhood association?​

2. Are there HOAs who Conditions, Covenants, and Restrictions (CC&Rs) specifically address the issue of gun ownership?

Generally, it takes some type of super-majority, either 66%, 75%, 80%, or whatever, to amend the CC&Rs.​

3. In the absence of either a law, a court ruling, or some clause in the CC&Rs, what is to prevent an HOA corporation's Board of Directors -- who are empowered to enact rules not covered by the CC&Rs -- from prohibiting the corporation's members, legal speak for homeowners, from possessing firearms?​

As far as I know, absolutely nothing.

 

[wishin]

Anyway, your comment get tgets us back to the issue, which I have been trying to figure out, but nobody has provided a definitive answer for.


1. Are there any laws, or court rulings, that would prohibit an HOA corporation from enacting a gun ban?

By signing an enforceable contract you effectively relinquish those rights? If what you're saying is correct, any Constitutional right such a having guns in your home can be abrogated through contract, you have your answer.

Now that's scary!

 

[Mad Man]

By signing an enforceable contract you effectively relinquish those rights?

The same as you do at work.

If what you're saying is correct, any Constitutional right such a having guns in your home can be abrogated through contract, you have your answer.

I hope I'm wrong, but I don't think so.

In the absence of any legislation or court ruling, such as those that have prohibited the enforcement of race-restrictive HOA covenants since 1948, I am not aware of any protection for gun owners in HOAs.

Now that's scary!

It's very scary.

Which is why I'm surprised as some of the attitudes expressed here.

Does all that talk about standing up for our rights mean nothing when an HOA forbids you to display a "Don't Tread On Me" flag or have a "Molon Labe" bumper sticker on your car?

 

[leadcounsel]

What if HOAs tell you you can't worship? They can try...

 

[Mad Man]

What if HOAs tell you you can't worship?

They used to, with Catholics and Jews being excluded from certain neighborhoods.

The history of the homeowner association stretches back to the 1830's when the idea was imported from London and used to protect developments with covenants restricting the use of land and proclaiming, for example, the acceptable race, religion, and drinking habits of the residents.

-Public Law Research Unit
University of California Hastings College of the Law
"Common Interest Developments"

I'm going to speculate -- and speculation is all it is -- that the current body of legislation and court rulings that prevents discrimination based on

• race
• sex
• religion
• age
• national origin
• disability
• etc.

would prevent them from doing so -- although some HOAs are allowed to discriminate based on age.

There are no such protections for gun owners.

This is why, absent any explicit protections, I believe that HOA corporations can legally ban gun ownership in their communities; the same way an employer can do so at work.

 

[danez71]

Its this sentence right here...

Therefore, recent court rulings that erroneously refer to the second amendment as an individual right do not apply to your association.

Thats VERY misleading.

Yes, the 2A is an indivigual right. Yes, it doesnt apply to HOA because, well, they are a corporation and not an indivigual.

However, it does NOT give a corporation the authority to take away an indiviguals rights.

 

[Mad Man]

However, it does NOT give a corporation the authority to take away an indiviguals rights.

How's that keeping and bearing of arms at the office working out?

I'm sure your boss appreciates the "This Cubical Protected by Smith & Wesson" sticker.

Or, if you live in an H.O.A., display a "Don't Tread On Me" flag and see what happens.

They will "Molan Labe," and send you the bill for doing so. If you don't pay, you lose your house.

 

[danez71]

How's that keeping and bearing of arms at the office working out?

I'm sure your boss appreciates the "This Cubical Protected by Smith & Wesson" sticker.

Or, if you live in an H.O.A., display a "Don't Tread On Me" flag and see what happens.

They will "Molan Labe," and send you the bill for doing so. If you don't pay, you lose your house.

Simple. The HOA has the authority is regulate the Common Area and whats see in the Common Area with-in the boundries of the Common Area. The Common Area isnt YOUR private property. It X% yours as its equally owned by all of the home owners and subject to vote per the CC&R's.

Your employer has the right to not allow firearms under private property rights as there is an owner (or corporation owner but an owner none-the-less).

The HOA ownes nothing. They are the voice of the collective owners in regards to the common area. Given the proper majority vote, the collective owners would be excercising their property rights. Since your are the sole owner of the area inside the walls of your condo, their collective vote means nothing inside your condo. But you still have to comply with city state fed laws and anything affecting the common area.

The person or corporation of your employers building ownes the building.

 

[Guillermo]

as previously stated the HOA can not strip individual rights. They can write whatever they want into the bylaws.

One fellow on THR mentioned that the HOA restricted antennas but the FCC said they did not have a right to do so (due to the dimension)

You can win but it might cost some legal fees

Or they can attempt to strip my right to keep and bear arms with a more direct approach. Either way it will be exciting

 

[Mad Man]

The HOA ownes nothing.

In addition to the common areas (which could be a single tree), the assets of an HOA corporation are the right to collect assessments (HOA dues), impose fines and fees, place a lien on the homes, and to foreclose on the homes. See here -- your home is forever collateral to whatever debts and liabilities an HOA corporation creates, even if the mortgage is paid off.

HOAs most certainly can, and do, regulate what you can do on and in your own property. They have the authority to regulate whatever the CC&Rs, Bylaws, and other regulations give them the authority to regulate, as long as such regulations don't violate an government regulation, statute, or court ruling.

How's the First and Fourth Amendments working out for this couple:

A South Florida couple said their homeowners' association has threatened to break into their home to remove a sign posted in a window

Bill Elliot and his girlfriend, Mary Ann Frye, bought a single-family home in Aruba at the Oasis in Homestead in 2007.
....
A letter from Association Law Group said, 'Should no one be home at the time the Association comes, the services of a locksmith will be utilized and you will be responsible for the cost.'
...
But Local 10 has discovered something Elliot and Frye didn't know. According to the by-laws that govern the neighborhood, which Elliot signed when he bought the house, the association does have the right to enter his property and remove any violations after a written notice.

-WPLG Local 10
"Resident: HOA Threatens To Break Into Home"
January 5, 2010

Up until 1948, HOAs could restrict the race of the persons living in a neighborhood. It was only the Supreme Court ruling of Shelley v. Kraemer that made such covenants unenforceable, although they still exist (see here and here).

Until the Telecommunications Act of 1996, HOAs could prohibit satellite dishes.


What protections exist for gun ownership in the HOA model of corporate government, where homeowners are required to abide by the terms of a contract, and not protected by a constitution?

 

[danez71]

In addition to the common areas (which could be a single tree), the assets of an HOA corporation are the right to collect assessments (HOA dues), impose fines and fees, place a lien on the homes, and to foreclose on the homes. See here -- your home is forever collateral to whatever debts and liabilities an HOA corporation creates, even if the mortgage is paid off.

HOAs most certainly can, and do, regulate what you can do on and in your own property. They have the authority to regulate whatever the CC&Rs, Bylaws, and other regulations give them the authority to regulate, as long as such regulations don't violate an government regulation, statute, or court ruling.

How's the First and Fourth Amendments working out for this couple:



Up until 1948, HOAs could restrict the race of the persons living in a neighborhood. It was only the Supreme Court ruling of Shelley v. Kraemer that made such covenants unenforceable, although they still exist (see here and here).

Until the Telecommunications Act of 1996, HOAs could prohibit satellite dishes.


What protections exist for gun ownership in the HOA model of corporate government, where homeowners are required to abide by the terms of a contract, and not protected by a constitution?

(Regarding the two bolded sections)

No, the HOA does not own the common area property. The collective owners do. Ive seen the HOA own parking spaces but those spaces are deeded to the HOA and therefore not Common Area by definition.

But in the true sense of Common Area my statement still stands.

The HOA has the authority is regulate the Common Area and whats see in the Common Area with-in the boundries of the Common Area. The Common Area isnt YOUR private property. It X% yours as its equally owned by all of the home owners and subject to vote per the CC&R's.

The above statment still addresses this (except I typed "see instead of "seen", and my previous statement below covers the rest:

But you still have to comply with city state fed laws and anything affecting the common area.

That HOA is basing their forced entry on the fact that sign can be seen in the Common Area which falls again under what my 1st quote is.

This is not a gun thread... this is a property rights thread. Dont be surprised when this 3rd thread is locked.

 

[w_houle]

The last trailer court I lived in had a specic clause n the contract that you are specifically prohibited from having loaded weapons in your trailer, and that any form of discharge would be proof of violation of contract. After that, you would be evicted.

 

[danez71]

The last trailer court I lived in had a specic clause n the contract that you are specifically prohibited from having loaded weapons in your trailer, and that any form of discharge would be proof of violation of contract. After that, you would be evicted.

With out looking at your specific paperwork....... typically in trailer courts/parks you only lease the land.

 

[CapnMac]

Well, there is a new trend in "planned subdivisions" where the HOA is deeded 1 or 2% of all the housing lots. Which means no resident can ever fully own their own property. It is a form of voluntary tenancy, one for which one is compensated, presumably, by the amenities offered by the HOA to the community.

None of which is a bar to the better/smarter-than-you crowd that seems to gravitate to leadership positions in HOA for arbitrarily imposing rules on a resident's life or home.

Like if your guests "speed" in the subdivision. I know of several "communities" that ticket residents for guests' speeding, and too many tickets can result in expulsion.

Which makes it more than some hard to be a remodeler in these 'hoods; the security people constantly hector or annoy your crew, you can't park, and you have no idea if the ARB-approved renovation will get "condemned" by some would-be-Stasi Block Kaptian decides to veto the thing. (Ugh, not pleasant memories.)