Can Your Landlord Ban Guns?

On June 25, 2022, President Joe Biden signed a bipartisan gun reform bill into law whose aim is to reduce the threat of gun violence across the country. Of course, gun control has long been a matter of debate, with those on one side calling for stricter laws and those on the other doubling down on Americans’ right to bear arms as stated in the Second Amendment.

But while the Second Amendment does establish certain rights, it doesn’t necessarily trump the rights of private property owners. And just as landlords have the right to put specific tenant rules in place in the context of smoking, noise-making and pet ownership, so too do they often have the right to bar tenants from keeping firearms in their homes.

Still, that doesn’t mean landlords can universally ban guns. As is the case with many other matters of the law, ultimately, landlords’ rights in this matter hinge on what their respective states have to say about it.

[READ: Can a Landlord Evict You Without a Court Order?]

Most States Are Silent on Landlords’ Rights to Ban Firearms

It’s often the case that individual states are left to determine how landlord-tenant laws should read. What makes the matter of firearm bans tricky is that most states are silent on the matter. But that actually gives landlords more leeway.

Dan Chern, a Dallas, Texas, attorney, says, “If states are silent, then the landlord is free to put a provision in a lease banning firearms, and that provision would be found enforceable under general contract provisions.”

In other words, if there’s no law stating that a landlord cannot prohibit guns, then a landlord is free to do so, the same way a landlord is free to prohibit dogs or certain dog breeds or smoking on the premises. And a tenant who signs a lease with a gun ban is expected to adhere to that rule.

What if a tenant needs a gun for professional reasons? Jan Wouters, an attorney at Bathgate, Wegener, Wolf, P.C., a New Jersey firm, says that’s something that would need to be negotiated. But if a state is silent on the matter, which is the case in New Jersey, then it’s at the landlord’s discretion.

Of course, some tenants might argue that their Second Amendment rights are being violated. However, “a private landlord is not bound by the rules of the Second Amendment,” says Adam Leitman Bailey, a New York-based real estate attorney. “If a landlord bans a weapon in writing or in a lease before you move into a unit, then despite the Second Amendment of the Constitution, you cannot bring a weapon into a landlord’s property.”

To be clear, though, a landlord must put a firearms ban in a lease for that rule to be enforceable. If a lease is silent on the matter, then a landlord doesn’t have the right to tell a tenant they can’t have a gun in their home. That’s an important distinction, because, as Bailey says, New York leases generally do not mention guns one way or another.

[READ: How to Write a Lease Termination Letter.]

Some States Have Laws in Place

While most U.S. states don’t have specific laws on the books with regard to landlords’ rights to ban firearms, a number of states do:

— Tennessee allows landlords to prohibit firearms.

— Ohio landlords cannot prohibit tenants who are licensed to carry firearms from having guns in their homes.

— Minnesota landlords cannot ban firearms on their properties.

— Virginia says that landlords cannot ban guns in public housing units or make the prohibition of firearms a condition of tenancy.

— Texas prohibits landlords from banning guns in rental units, including condos and manufactured homes.

When Gun Restriction Clauses Are Violated

If a landlord owns property in a state that allows them to prohibit guns, and they opt to do so, tenants who violate that lease clause face eviction the same way they would for violating another lease clause, says Chern. Granted, a landlord may have the burden of proving that a violation has occurred. But if the proof is there, it can be grounds for eviction, and a tenant’s Second Amendment rights will rarely serve as a viable defense.

As Bailey says, “Both the federal government and state government can force landlords and property owners to let tenants carry guns by passing laws. But if there’s no law, then it’s the landlord’s decision.”

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When a Tenant Is Injured by Another Tenant’s Firearm

Landlords put certain rules in place, and in writing, in an effort to not just protect their tenants, but also their financial interests. For example, a landlord might prohibit smoking so as to minimize the risk of fire damage to their property.

This begs an interesting question: How do firearm bans, or a lack thereof, tie into premise liability law in the event that one tenant injures another with a gun?

According to Chern, who practices in a state where landlords expressly cannot prohibit guns, there’s been no case law to tell us how this sort of situation might play out. However, a landlord could easily point to the fact that they were prohibited from banning guns as a viable defense if a tenant were to sue for damages. In states that are silent on the issue, adding firearm bans to leases could give landlords some protection in the event of a lawsuit.

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Can Your Landlord Ban Guns? originally appeared on usnews.com

Update 10/05/22: This story was published at an earlier date and has been updated with new information.

Correction 10/06/22: A previous version of this story incorrectly stated New York lease practice. New York leases generally do not mention guns one way or another.

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