What Limits Can Your Landlord Put on Gun Possession?
Know where your right to bear arms and your landlord's rights intersect.
State laws play an important part in deciding if landlords can stipulate in the lease whether firearms are allowed on the property or not.(Getty Images)
Gun control has been a hot topic of debate in the U.S. for decades, though it recently received renewed fervor following the school shooting at Marjory Stoneman Douglas High School in Parkland, Florida, on Feb. 14, where 17 people were killed and 17 more were wounded.
The tragedy sparked heated debate on both sides – while some are calling for stricter laws regarding gun ownership, others fear such laws will take away their right to bear arms.
But in the case of private property, the decision to keep firearms on the premises may not be up to you. For tenants in apartments or rental homes, depending on the state you live in, your landlord may have the ability to restrict gun ownership.
While the Second Amendment establishes the right to bear arms, it does not keep individual property owners from restricting the presence of guns. Retail stores across the U.S. place signs at entrances that establish the spaces as a gun-free zones – and in many cases landlords will do the same.
The ultimate decision on whether guns can be restricted in any form in rental property comes at the state level, where “it varies a lot on how gun laws are interpreted,” says Michael Skojec, senior counsel at Ballard Spahr LLP, a law firm specializing in litigation on behalf of property owners, developers and property management regarding real estate and fair housing.
Whether you own a gun or are looking to keep as far away as possible from one, it’s important to understand how your right to bear arms and your tenant rights coexist, differ and intersect. Here’s what you should know about a landlord’s ability to restrict firearms.
What States Decide
Like many issues regarding residential property, landlord-tenant laws are largely left to individual states to determine and regulate.
The major exception, of course, is fair housing. The Fair Housing Act was originally enacted in 1968 and protects against housing discrimination based on race, color, national origin, religion, sex, disability or family status. Gun ownership is not a protected class under fair housing laws and is therefore subject to potential restrictions or laws based on the state.
Most states remain silent on the issue, which effectively allows landlords to stipulate in the lease whether firearms are allowed on the property or not.
“If there’s no state law that says they are prohibited from limiting guns, then the default would be that as a private landlord, you can prohibit any activities on your property that you want, other than those that might discriminate under discrimination laws,” Skojec says.
Some states go further and establish that a landlord has the express right to ban guns from their property. Tennessee law explicitly allows landlords to prohibit firearms in their rentals by including the ban through a clause in the lease or by following a uniform landlord-tenant act that exists in some counties in the state. If a Tennessee landlord posts signs prohibiting firearms that follow state requirements, a violating tenant could even be subject to criminal prosecution.
Minnesota, on the other hand, forbids landlord prohibitions of firearms outright. As the 2017 firearm possession statutes note: “A landlord may not restrict the lawful carry or possession of firearms by tenants or their guests.”
Other states limit a landlord’s right to establish rules but leave room for some restrictions. Ohio law, for example, restricts landlords from prohibiting tenants or their guests from possessing a firearm when they are concealed carry licensees.
Public Housing Rules
Regardless of the state, restrictions on gun ownership in public housing where the federal government plays a more direct role are tougher. “Whenever the government is involved and providing any restrictions or prohibitions directly – not a landowner but a government agency – then that constitutional amendment has to be respected,” Skojec says.
Skojec recalls a federal case out of Delaware in 2012 – Doe v. Wilmington Housing Authority – which ruled policies restricting firearm possession could stand as long as they fell under “reasonable regulation.” In this case, that included limiting guns in common areas and requiring gun owners to be able to provide the proper paperwork for ownership, possession or transport of a firearm.
In appeal, however, the case was redirected to the Supreme Court of Delaware, which ruled that the state’s constitution, which defines the right to bear arms more broadly than the U.S. Constitution, and the housing authority’s policies violated rights established by the state.
The U.S. Department of Housing and Urban Development does not offer any guidance on the issue of firearms in public housing, leaving it to state laws and local housing authorities to decide. In Virginia, the law specifically prohibits restrictions on lawful firearm possession for public housing only, unless the restriction follows a federal law or regulation. In states that don’t specify, Skojec says many public housing authorities will err on the side of reasonable regulation – establishing rules for common areas, but otherwise allowing a gun to be lawfully kept in a rental and appropriately transported to and from the home.
When You’re Not Sure
In states where prohibitions on gun possession are not allowed, any clause in a lease agreement violating that law would not be upheld in court. Even in states where restrictions are permitted, a landlord should get legal advice to ensure any clauses in the lease follow the law. "The best thing is to have their attorneys draft the lease to put the language in there," says Kris Taylor, president and owner of American Tenant Screen Inc., a tenant-screening company.
But even when a landlord can ban firearms from his or her property, if it’s otherwise lawful ownership, there’s little immediate recourse to get a gun off the property. Police departments enforce local laws, and if the gun is registered, properly stored and not being used in a threatening manner, the quickest action is through eviction court for violation of the lease.
Whether you're a proud firearm owner or you prefer to live in a gun-free zone, it doesn't hurt to ask if there is a policy when you tour the rental or apply for a lease. Otherwise, you likely won't hear about any restrictions until you're going through the contract with a leasing agent, unless there are signs displayed. Taylor says her company doesn't include any information about gun ownership in its tenant screening process, but they've also never had a request by landlords, either. "It's not something that we ask or people ask us to do," she says.
For the sake of avoiding future problems, if you fundamentally disagree with a landlord’s firearm policy, look to live elsewhere in the same way you’d avoid an apartment building that doesn’t allow dogs if you have a Labrador retriever.