Private contracts are still private
A lot of folks seem upset with the recent TN AG opinion that says a landlord can ban firearms on his property. Well, it’s the landlord’s property and so long as a tenant agrees in the contract or such a requirement is in the rules the tenant agrees to abide by, then that’s a matter of abiding by a contract. If you sign such a contract, you are bound by it. I can’t imagine many people would sign such a contract.
October 29th, 2009 at 9:38 am
Shouldn’t the same logic be extended to employers who ban firearms in employee vehicles? I seem to recall you arguing that the employees should win, but I can’t locate the post.
I’m as pro gun as it gets, but my rights end where your private property begins.
October 29th, 2009 at 9:43 am
Actually, I said in many posts that employers should be able to ban weapons on their property. But that an employee’s vehicle was their secured property and if it was on a lot available to the public, that should not be a crime.
October 29th, 2009 at 10:07 am
There are lots of folks who’d sign a contract like that, ’cause poeple don’t really read contracts.
As an amateur radio operator, I’m flummoxed at the number of hams who will buy property in restricted communities, and then whine about the fact that they can’t erect a radio tower.
October 29th, 2009 at 10:13 am
As long as they can ban Christians, Muslims, Homosexuals, Heterosexuals, short, tall, men and women, I’m OK with that.
If they can’t ban based on sex, religion, appearance, etc, then there might just be an ethical problem here.
October 29th, 2009 at 10:15 am
My mistake. I really did look for some of your posts about it, but I got distracted and decided to use the Joyce Foundation research method.
October 29th, 2009 at 10:32 am
I guess my question would be can the landlord change the rules on you?
If your lease doesn’t specifically speak to gun ownership one way or another, can the landlord just one day decide that he really doesn’t like guns, ban them and evict anyone who doesn’t agree?
I haven’t lived in an apartment for years, but I don’t remember there ever being any statement about gun ownership on any lease I’ve ever signed…or even on any lease that I’ve elected to turn down for that matter.
Heck, I was even allowed to keep my guns in Military Base Housing on the two occasions that I lived on base.
October 29th, 2009 at 12:28 pm
I haven’t personally seen this in any of the leases I’ve ever signed one way or another… but when I was renting a house in Florida I noticed that some of the Home Owner’s Associations in the area had rules banning the carrying of firearms.
October 29th, 2009 at 1:14 pm
I happen to have a lot more experience as a landlord with lousy tenants than I ever wanted.
When I accept a tenant, we read the whole 8-page lease and the tenant initials every page indicating it was read to him or her and understood.
There are laws against discriminating against tenants based upon gender, race, religion, national origin (but not immigration status) and even sexual orientation in some locales. Ever seen a pot of ghee go up in flames, followed by several Indians wondering whether to evacuate as the apartment filled with black smoke, and no fire extinguisher even thought about? I have.
One cannot abrogate a Constitutional right in a contract. Such contracts are invalid. One can deny people the use of a waterbed (I do), or large dogs as pets (I do) or limit the number of people who can “visit” the apartment, or define offenses that will terminate the lease (annoying other paying tenants, in general, with lots of specifics) but I cannot limit freedom of speech, I have to abide by federal and state rules regarding my entry into my property (even for maintenance or emergencies) and I cannot force the tenant to leave without either their agreement (5 times over the past 5 years) or a court ordered eviction (twice over the past five years).
So this opinion is interesting as a public document, but I don’t see it holding water unless state law narrowly defines the property rights of the tenant such that he is essentially only a visitor in someone else’s property (like an employee at work).
October 29th, 2009 at 1:29 pm
One cannot abrogate a Constitutional right in a contract.
That’s simply not true. Constitutional rights are restrictions on government action. Not private action. The only times that there is a restriction on private action arise in some limited areas where enforcement of the clause is viewed as entangling the government – usually in religious freedom cases.
October 29th, 2009 at 2:59 pm
It it’s state police and state courts that are enforcing the provisions of this contract, then it sure as heck isn’t private. Governments/states enforce virtually all contracts, thus have a say in what is contained in those contracts. (I’m not talking necessarily about judicial activism, just that the people of a country/state can pass laws regulating aspects of contracts.)
I suppose the contract could somehow be enforceable by a religious court, but they can only kick people out of churches and such. They can’t seize property or place a person in jail.
October 29th, 2009 at 4:36 pm
Sailorcurt: As I mentioned over my way, Tennessee State Code forbids landlords from changing the terms of the lease (which includes the complex rules) after a tenant has signed it, unless the landlord notifies the tenant of the rule-change (or unless the rule-change is not “significant”, whatever that may mean). My contract does specify that I cannot brandish firearms for the sake of intimidating my fellow residents or randomly shoot them off, but it is otherwise silent on the topic.
Mikee: Regarding your comment of “but I cannot limit freedom of speech”, I have to ask, why not? My apartment complex does with its lease contract, and they actually called me on it (I flew a flag from my balcony, which was in violation of the contract in question).
Alcibiades: Two words: “civil courts”. If I do not abide by the clauses in a contract I signed, I am in breach of said contract, and I could, theoretically, face a civil court summons. Granted, in this case, the landlord would simply evict me and be done with it, but the point stands.
October 29th, 2009 at 5:37 pm
Linoge: As I said on your Blog, FLYING a flag is not the equivalent of HAVING a flag, just as HAVING a gun is not the same as FIRING a gun. A lease that prohibits possession of a flag, a Bible, a Quran, or political literature is just as unconscionable as a lease the prohibits possession of firearms.
To those of you that talk about ‘private property’ forget that you are leasing the property to another- that restricts the degree of ‘property rights’ that you claim. For example, many states require that you give reasonable notice before entering the property (except in emergency). You cannot exclude the lessor from the leased property, because he is in possession of the proeprty under the lease.
Don’t like it? Don’t lease it out.
October 29th, 2009 at 6:06 pm
And as I said over there myself (which you apparently have not bothered to read), I do not care what kind of similarities there are between flags and firearms – the owner of the property telling me that I cannot fly a flag is a direct and absolute abrogation of my First Amendment rights.
It is also an abrogation I agreed to when I signed the contract.
Likewise, an owner telling me that I cannot own a firearm (or a bible, or whatever the hell else) is an abrigement of the appropriate right in question, but if I sign a contract agreeing to that infringement, then I am honor-bound to uphold my end of the contract.
If you do not like it, do not sign the contract.
October 29th, 2009 at 10:06 pm
I would have read your response at your blog, except that I am at work, and our web filters prohibit your blog for whatever reason.
Remember that contract law plainly states that a contract is only enforceable as long as the provisions of that contract are not unconscionable. This is the reason why a a rental agreement that states the landlord is not responsible to maintain the premesis is unenforceable in most states.
Another example of the restrictions placed upon a landlord is in his ability to enter the premesis. Every state in which I have lived places restrictions on when a landlord may enter the rented premesis.
just because it is in the lease does not make it legal, and most definitely does not make it enforceable.
October 30th, 2009 at 9:04 am
Not being allowed to change the appearance of the property from the outside and not being allowed to annoy your neighbors, are not the same as not being allowed to own legal property.
If they said you aren’t allowed to shoot holes in the wall, that’s great. Waterbeds are banned due to their weight causing structural damage and the perceived possibility for flooding damage from leaks.
The possible property damage via firearms accidents is pretty small. Holes are a common thing to fix for property owners.
The whole basic human right to self defense is a pretty big issue as well.
Speaking of self defense, can a lease ban smoke detectors, fire extinguishers or first aide kits?
October 30th, 2009 at 1:55 pm
Even a civil court won’t violate the laws of its state. I seem to remember a Massachusetts court throwing out a prenuptial agreement because it violated the spirit of their marriage laws.
So, no, even civil courts are arms of the State and any contract involving them is subject to state laws.