Property rights vs. gun rights: Can an owner or manager prohibit firearms?

Amanda Maher
Amanda Maher | 6 min. read

Published on February 2, 2016

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” –2nd Amendment, United States Constitution

Though controversial, the language in the Constitution makes it pretty clear that Americans have the right to own guns. But what if a landlord isn’t comfortable with tenants keeping firearms on the property? Or what if those guns are held illegally? Does a landlord have the ability to evict a tenant as a result?

The answer isn’t always so clear.

Kathleen and her husband rented their home to an unmarried couple with five children. The tenants paid their rent on time each month, so there was little reason for Kathleen to check in on the property regularly. However, she and her husband were friendly with the neighbors, and they heard stories about people coming and going from the property at all hours of the night—one time, a car pulled away with a female passenger who had blood on her head. There were other reports of the home smelling like marijuana; and one time, the neighbor saw the toddlers roaming down the street in their pajamas late at night. Even so, the tenants paid the rent on time, so Kathleen didn’t bother interfering in their personal lives.

About three months after moving in, the male tenant was arrested for possession of a semiautomatic weapon, among other things. The tenant was not at the house during the time of his arrest, and though he had been arraigned, it will still take some time before a conviction (if there is one). At the time of the tenant’s arrest, Kathleen and her husband were concerned for the safety of their home and their neighbors and wanted to pursue eviction. But could they?

It really depends on a few factors: whether the gun was possessed legally or illegally, state law, the terms of the lease, and the landlord’s ability to prove weapons are on the property.

Determining whether a person is keeping a gun legally or illegally is a challenge in its own right. There is no national registry for guns, and you can’t find gun permit information in all states. In fact, only a handful of states require a permit before purchasing a firearm. Even where this information is available—and it’s typically only available by going through an arduous public records request process—it’s only of so much use: permits are tied to people, not to firearms. Therefore, a person could hold a permit (e.g. for a hunting rifle) but the gun may be illegal (in this case, a semiautomatic weapon).

Another important factor is whether state laws allow landlords and property managers to prohibit tenants from keeping guns in the home. That’s two constitutional rights at odds: property rights vs. the right to bear arms. According to federal law, property rights supersede in this case—the Second Amendment right to bear arms is a limit on government power, not a limit on private citizens. Thus, a private citizen landlord can ban firearms on his or her rental properties without violating the Second Amendment. Gun owners have claimed this is a violation of their rights, but gun owners are not considered a “protected class,” and therefore have no claim under Fair Housing laws.

Cleared by federal law to prohibit guns, landlords are in murkier territory at the state level. A few states (most notably Minnesota) explicitly prohibit landlords from limiting tenants’ ability to possess firearms. Assuming your state law has no such prohibition, landlord-tenant law requires landlords and property managers to put a provision in each tenants’ lease that clearly states that no firearms are allowed on the property. Without this language in the lease, if a tenant’s guns are held legally, a landlord has little recourse.

So, assuming the best case scenario—a person is keeping a weapon on the property in a state that allows the property owner to prohibit firearms, and such language is specified in the lease—how can a landlord evict a tenant? The final challenge is obtaining proof that there is a firearm on the property. Unless the landlord or property manager has a valid reason to enter the unit, and while in the unit obtains evidence that a firearm is present, the owner will have a hard time initiating eviction, because privacy laws prohibit undue searches.

Finally, even if the landlord is able to prove that a (legal or illegal) firearm is being kept on the property (in violation of the lease), landlords have the final burden of proving that (a) it was the tenant’s firearm, and/or (b) that the tenant knew the firearm was present. In a number of cases, sympathetic courts have allowed tenants to use the defense that the gun wasn’t theirs; that they had no knowledge of the gun (for instance, a friend came to visit and had the gun); or that they could not have prevented the gun from being brought on to the premises.

Given that there are so many factors to  consider when prohibiting guns in a rental unit, and that any combination of these factors works against the landlord’s ability to have recourse, landlords’ best protection is to do their due diligence on tenants in advance to prevent an unwanted scenario such as Kathleen’s.

Determine Whether State Law Allows You to Prohibit Firearms on the Property

If so, craft the language in your lease to reflect the same. In larger complexes, consider putting up signage that reminds tenants that the property is a “gun free zone,” similar to signs at public schools.

Conduct an Extensive Background Check on All Prospective Tenants and Call References

In Kathleen’s case, she later found out that both the male and female tenants she had rented to had a prior arrest for cocaine possession—a red flag for other unscrupulous activities.

Put All Tenants Over the Age of 18 on the Lease

In a case out of New York, a court found sympathy for a mother who was facing eviction after police recovered an illegally-possessed firearm from the property; the gun belonged to her son, who lived in the apartment, but was not on the lease. As such, the court found that the mother could not be held liable because she did not bring the gun on to the property and had no knowledge it was there.

Terminate the Lease at Its Expiration

Landlords face an uphill battle when trying to evict tenants for gun possession. When all else fails, if the owner suspects the tenant is keeping guns and if it has become a problem, landlords should simply opt not to renew the lease upon its expiration (and hope for the best in the interim).

Fuddling with Constitutional rights is risky business; but so, too, are tenants involved in illegal activity. Take precautions up front and if/when a problem arises; be sure to consult a lawyer and/or the police for advice on how to proceed. Confronting disgruntled gun-toting tenants should not be done alone.

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Amanda Maher

Amanda Maher is a self-proclaimed policy wonk who dabbles in real estate law. She holds a B.S. in Political Science and Sociology from Boston University, as well as a master's in Urban and Regional Policy from Northeastern.

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