Senior Condo & Guns

[ammo.crafter]

Checked with wife/attorney.

Must be stated in the by-laws or voted on by 2/3's of the residents of the community.

[Brian Pfleuger]

If I may inject a moment of levity...

I read "Seníor Condo", as if it were some sort of pseudo Mexican name and my first thought was a deprecating reference to some politician I didn't recognize.

[Buzzcook]

There is no infringement of the 2nd amendment here. The Bill of Rights protects us from government over reach, not civil contracts.

The only exception is protected groups such as minorities, and women.

An individual is free to set aside any right they wish to in a private contract.

[Evan Thomas]

I read "Seníor Condo", as if it were some sort of pseudo Mexican name and my first thought was a deprecating reference to some politician I didn't recognize.

I think Simon and Garfunkel wrote a song about him called "El Condo Pasa."

[Bad mods -- we now return you to your scheduled thread.]

[K_Mac]

I think Simon and Garfunkel wrote a song about him called "El Condo Pasa."

Nice! I do enjoy an obscure music reference. I really like Sen'ior's song too!

[Frank Ettin]

Originally Posted by kilimanjaro

They can ban firearms, but that would be a violation of the 2nd Amendment and actionable in a court of law.....

No, it would be neither a violation of the Second Amendment nor necessarily actionable.

Originally Posted by TimSr

They cannot strip you of a Constitutional right....

And that is wrong as well.

The Constitution does not regulate private transactions, and is not involved.

Originally Posted by TimSr

...if he was not made aware of it, and or it was not included in any agreements he has signed, they don't have much ground to stand on.

That is correct, because, as Aguila Blanca put it:

...This appears to be a matter of contract law....

This is entirely a contract issue.

So if it's in the rules/CC&Rs, the fellow is stuck. The "no guns" restriction would be enforceable in the same way and on the same bases as any other violation of the CC&Rs.

If it's not in the CC&Rs, the HOA would probably have no grounds upon which to enforce a "no guns" restriction.

Originally Posted by kilimanjaro

...the concierge could be personally liable.

Cite legal authority.

[Skans]

No, it would be neither a violation of the Second Amendment nor necessarily actionable.

I do not believe the issue is that clear cut. Deed restrictions are not the same thing as a contract. And, a homeowner's association can be considered a quasi-governmental agency. Further, the more municipalities and counties require HOA's and deed restrictions as part of every new development per development orders, I think it will be harder to argue that HOA's and the CC&R's are a creature of contract and therefore not subject to the federal and state constitutions.

I don't know the answer to this. Nor do I have any examples of CC&R's used to prohibit firearms in neighborhoods. However, I can see where Antis could use CC&R's as an inroad into restricting gun ownership by attempting to side-step genuine governmental regulation.

[buckhorn_cortez]

...the concierge could be personally liable.

For what? Incorrect information? If that were true, then the entire Internet, including you for your statement, would be liable for incorrect information...

[cjwils]

I made a comment about CC&Rs back in post #8 that seems to have not gotten a reaction, so I will try again.

We all know that a clause in residential CC&Rs that would prohibit sale to members of certain races must be ignored because it is unconstitutional. That is true even though property sale is a contract between private parties. Therefore, why can we not ignore a clause in the CC&Rs or condo bylaws that prohibits guns? Didn’t the Supreme Court decide that the second amendment protects an individual right? Doesn’t a constitutionally protected individual right supersede a clause in a private contract?

This is not about carrying a gun on someone else's property where the property owner's rights would prevail. This is about rights of the gun owner in question regarding what he can do at his home. And if it is a condo, then he is an owner there.

[BarryLee]

This is about rights of the gun owner in question regarding what he can do at his home

Yes, this is sort of why I opened the thread in the first place. I can see how the facility could ban guns in common areas, but was just a little fuzzy if they could inside the actual private residence.

My coworker wasn't there yesterday and I'm off today, but I'll follow up next week and see if they found anything else in their documents.

[Skans]

Therefore, why can we not ignore a clause in the CC&Rs or condo bylaws that prohibits guns? Didn’t the Supreme Court decide that the second amendment protects an individual right? Doesn’t a constitutionally protected individual right supersede a clause in a private contract?
cjwils is online now Report Post

The bottom line is that I think you make a very good argument for this. A couple of things to note, however. A condominium is not the same as single family residences, and a Declaration of Condominium is not truly comparable to a subdivision's CC&R's. Ownership is completely different and the laws that regulate Condo Boards and HOAs are completely separate and distinct from one another, at least this is how it is in Florida and several other states I'm familiar with. Generally speaking, rules and regulations tend to be far more extensive and intrusive in Condos, usually for good reason - you are living in extremely close proximity to your neighbors. This justifies tighter regulation to keep down disturbances and conflicts. Also, everyone has an equal, undivided interest in all of the Condo common areas.

With regard to HOA's, municipalities have been using these entities to offload the expense of code enforcement, maintenance of drainage ponds and other infrastructure serving a specific neighborhood to HOA's. In that regard, the HOA has assumed much of the same responsibilities as a government body; arguably a political subdivision of the municipality.

I think your argument works better for subdivision CC&Rs than for a condominium. With a condominium, several arguments can be made claiming the following concerns related to firearms:
1. Over-penetration - self explanatory to most on this board.
2. Close proximity = higher chance of conflict. Just like Bar = higher chance of conflict.
3. Alleviation of fears of non-gun owners living in such close proximity to firearms.

I'm not advocating for any gun bans or restrictions in Condos or otherwise. If you've read other things I've posted you can rest assured of this!

Just some things as far as terminology goes when discussing this:

1. CC&Rs = Covenants Conditions and Restrictions = Declaration of Covenants and Restrictions = Deed Restrictions. Depending on where you live they have slightly different names, but this is the document that enables a HOA and mandates certain requirements and restrictions that run with the land.

2. Declaration of Condominium = formation document for a condominium and contains the basic regulations and restrictions for everyone living in that condominium building. It does a lot more than CC&Rs do because it actually has to take a solid building on a piece of land and divide it up into units, common areas, limited common areas and apportion responsibility among all of its members.

3. HOA = Home Owner's Association. Condominium Board for a condominium - these governing boards are elected by the Unit Owners or homeowners/lot owners.

4. Bylaws. This document DOES NOT contain any restrictive covenants. It sets out voting rights of the owners, establishment of a Board of Directors and procedures for Board elections, Board actions, meetings, etc. Talking about restrictive covenants being in the Bylaws is like calling a magazine a clip.

5. Rules / Regulations - an ancillary, more detailed set of rules that must be followed. This can only be enacted if authorized in the CC&R's or Declaration. Sometimes it requires an action of the Owners to pass them; other times it will only require Board action - that will be specified in the CC&Rs/Declaration. I mention this because often, rules and regulations are not properly enacted.

6. ARB/ARC = Architectural Review Board or Committee. This is a committee that serves the Board and is generally responsible for approving changes to the exterior of a home owner's lot.

[Frank Ettin]

Originally Posted by cjwils

...We all know that a clause in residential CC&Rs that would prohibit sale to members of certain races must be ignored because it is unconstitutional.....

Not exactly.

There are statutes specifically prohibiting discrimination in housing on certain specified bases, e. g., race, religion, gender, and national origin. So such CC&Rs are illegal because they violate those statutes -- not on constitutional grounds. And gun ownership is not one of the specified bases upon which discrimination is prohibited.

There was a case, Shelley v. Kraemer, 334 U.S. 1 (1948), in which the Supreme Court found a racially restrictive covenant in a deed unenforceable. Some things about Shelley that could make broad application of the case doubtful:

1. The Shelleys were an African-American family who, in 1945, had bought a home in a particular subdivision. The subdivision dated back to 1911, at which time the owners of the individual parcels all agreed that no parcel within the subdivision would be occupied by non-Whites. This agreement was recorded. This is an example of a "restrictive covenant running with the land."
   
   
2. The seller of the property was not a party to the suit. He had sold the property to the Shelleys, and was, as far as we know, completely happy with the deal.
   
   
3. A lawsuit was brought in state court by other, neighboring, property owners to keep the Shelleys from moving into the neighborhood. The state court issued the requested injunction, and the Shelleys sued in federal court to block enforcement of the injunction.
   
   
4. Note that the Shelleys were not being sued in state court on the basis of anything they agreed to. The underlying agreement being relied upon by the state court plaintiffs was entered into among past owners of the property. We don't know if any the Shelley state court plaintiffs were even signatories to that underlying agreement, nor do we know if the person selling the property to the Shelleys was a signatory.
   
   
5. But in any case, the underlying lawsuit against the Shelleys was not based on any contract the Shelleys had entered into or any promises made by the Shelleys to any of the state court plaintiffs. There was, as we say, no privity of contract.
   
   
6. I've not seen anything like the core theory of Shelley being applied in any case not involving a restrictive covenant running with the land.
   
   
7. Further, Shelley may well be an example of the adage that hard cases make bad law. The Shelleys being dispossessed of their home was apparently unacceptable to the Court, yet at the time there were limited tools available to deal with such a repugnant result.
   
   
8. In any case, Shelley is probably moot at this time because the various state and federal civil rights and anti-discrimination laws now available would provide ample statutory grounds to avoid a Shelley situation.

In contrast, the Supreme Court has ruled specifically that the Constitution does not regulate private conduct. As explained by the United States Supreme Court (Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614 (U. S. Supreme Court, 1991), emphasis added):

....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. ....

[T. O'Heir]

"...They cannot strip you of a Constitutional right without your consent..." Don't think you can sign away your rights anyway. A contract, and that's what a condo agreement is, cannot change any law or make anything illegal or legal that is not by statute. Certainly can't up here anyway.

[Frank Ettin]

Originally Posted by T. O'Heir

...Don't think you can sign away your rights anyway. A contract, and that's what a condo agreement is, cannot change any law or make anything illegal or legal that is not by statute. Certainly can't up here anyway.

No, that is wrong.

While a contract can't change the law, a contract can, and does, cause one to give up rights -- here, in Canada, and pretty much everywhere else (especially in Common Law jurisdictions). That is the nature of a contract.

A contract is an enforceable promise. You promise to do something, or not do something, that you may legally do, or not do; and in return I promise to do something, or not do something, that I may legally do, or not do. That exchange of promises (mutuality of consideration) is what makes a contract a contract and gives you or me a remedy if one of us fails to keep his promise.

So, for example, in a contract for the purchase and sale of goods --

1. I promise to buy 100 widgets from you for $X, and you promise to sell me 100 widgets for $X.
   
   
2. Prior to entering into that contract, I had a legal right not to buy widgets at all, and if I wanted widgets I had a right to buy them from anyone. And I also had a legal right not to pay you $X.
   
   
3. Prior to entering into that contract, you had a legal right not to buy widgets at all, and if you wanted to sell widgets you had a right to anyone who would buy them. And you had no legal right to $X from me.
   
   
4. But with that contract I have given up my legal right not to buy widgets from you. I have assumed a legal duty to buy 100 widgets from you and to give you $X for them. You have a legal right to my $X in exchange for the 100 widgets. If I refuse to accept the widgets from you and/or don't give you the $X, you can sue me for damages.
   
   
5. And with that contract you have given up the legal right not to sell me widgets. I have assumed a legal duty to provide me with 100 widgets, and you have a right to $X of my money for those widgets. If you refuse to supply me with the widgets or demand more than the $X, I can sue me for damages.

All contracts involve giving up legal rights and assuming duties on each side.

[Aguila Blanca]

I know what the acronym "HOA" stands for, but would someone kindly explain "CC&R"? It may be a regional term, because I used to work in a firm that prepared condominium declaration documents and I have never encountered the term prior to seeing it in this thread.

[Frank Ettin]

Covenants, Conditions and Restrictions