With the rise of gun violence in schools and public places, should landlords consider banning guns at their rentals, too? This is a question that doesn’t have an easy answer. In some cases, it’s a matter of what the state law says and in others, it’s a matter of personal preference. Before making a decision for your rentals, it’s important to be aware of what your local and state laws say on the matter. After that, you’ll need to weigh all sides of the argument to make an informed decision for your properties. Here are some of the most important considerations you should keep in mind.
Please note that this is for informational purposes only and is not intended as legal advice. Local and state laws may vary based on your location.
Which States Have Laws Regarding Guns at Rental Properties?
State laws vary on the issue of whether landlords can restrict or ban guns at their rental properties, as well as gun possession by tenants in general. Currently, only four states have specific laws on how landlords can handle gun possession at their rentals:
- Minnesota: A landlord cannot restrict the lawful carry or possession of firearms by tenants or their guests.
- Tennessee: A private landlord can prohibit tenants, including those who hold handgun carry permits, from possessing firearms within a leased premise. Such a prohibition may be imposed through a clause in the lease.
- Virginia: Public housing prohibits landlords from restrictions on gun possession for tenants, and landlords cannot use a prohibition clause in their lease.
- Wisconsin: Although this state has laws regarding where a weapon can or cannot be possessed, the stipulations are complicated.
All the other states (including California, Arizona, Colorado, Oregon, Utah, and Washington) don’t have specific laws regarding the issue, which means private landlords can choose whether they want to allow guns on their properties or not.
The Second Amendment and Other Considerations
What about the second amendment? It’s unlikely to apply to landlords who aren’t government entities or who receive government funding for rental assistance at their properties. However, private landlords should keep in mind that prohibiting tenants from having guns can potentially raise insurance and constitutional issues. However, one way to avoid these could be to add a clause to your lease banning the possession or display of firearms in common areas—as well as in the unit, if the handling of guns can be seen from the outside.
If you’d like to prohibit guns completely on your property and the state laws are silent on the issue, you’re within your rights to do so. So far, there hasn’t been a court case focused on Second Amendment rights in rental properties. However, a private landlord’s tenant could potentially bring a case to court on the grounds that they believe they have the constitutional right to protect themselves.
Another issue to consider is liability. For example:
- If you allow firearms on your property, could you be liable if someone gets hurt?
- If you prohibit a tenant from having a gun, and they are attacked in their home and are unable to defend themselves, could you be liable?
Unfortunately, there isn’t a clear-cut answer; each situation would need to be determined on a case-by-case basis. From a practical perspective, there’s still the potential of being sued if a tenant or their family is injured or killed because the landlord took their personal constitutional right away—even though the tenant agreed to the stipulation when they moved in.
On the flip side of the issue, if weapons are allowed on the property and a tenant injures or kills someone with a gun—intentionally or negligently—the landlord will likely be seen as partially liable. If you allow firearms on your property, it’s important to review your insurance policy to find out what is and isn’t covered.
Denny Dobbins, general legal counsel and vice president of Crimshield and RentPerfect weighed in on the matter: “It is possible that if a landlord has a no-weapons policy in the lease that the landlord will immediately become a target by a victim of a tenant shooting injury claiming the landlord should have known about the tenant’s possession of the weapon and should have taken steps to remedy the possession, although not at all practical. If there is no prohibition for tenants having weapons, then all tenants know of the ‘no-prohibition’ standard, and in my opinion, the risk to the landlord diminishes not just for injuries to others, but for constitutional claims.”
Dobbins also suggested that two Supreme Court cases regarding the Second Amendment potentially make a tenant’s right to possess a weapon in their rental a personal right, and therefore a protected class: District of Columbia v. Heller and McDonald v. City of Chicago.
The Second Amendment: District of Columbia v. Heller & McDonald v. City of Chicago
The meaning of the Second Amendment has been debated many times because it refers to having a “well-armed militia” as well as “the people’s right”—rather than an individual’s right. This has led to confusion over whether the “right to bear arms” is actually a personal right, rather than the right of the people to have a prepared militia.
In the 2008 case, District of Columbia v. Heller, the plaintiff challenged a Washington D.C. law prohibiting the possession of handguns. In a 5-4 decision, the Court found that the law was unconstitutional and stated that the Second Amendment established the individual right for U.S. citizens to possess firearms. The Court also established that the government can impose restrictions on firearm possession when it comes to felons or mentally ill individuals.
In 2010, the Court strengthened Second Amendment protections in the case McDonald v. City of Chicago. In this case, the plaintiff challenged the constitutionality of the handgun ban in Chicago, which prohibited nearly all private citizens from possessing a handgun. In a 5-4 decision, the Court cited the Fourteenth Amendment (which prohibits states from passing laws that are contrary to federal law) and held that the Second Amendment applied to the states as well.
With this in mind, it seems possible that a private landlord who prohibited their tenants from possessing firearms on their property could be successfully challenged in court based on the prior rulings.
Another important consideration is enforcement. If you’d like to ban firearms from your rental property, another important consideration is how can you actually enforce the ban? There’s no way to really know what a tenant has in their home or brings onto the property. Landlords can’t conduct searches. Even if the state law allows landlords to prohibit guns, there’s no practical way to enforce it. In states that have strict gun laws, criminals still find a way to get firearms—even state governments have difficulty enforcing the laws.
Consider Adding Specific Clauses to Your Lease
Obviously, prohibiting guns in rental properties comes with some complex issues and important legal considerations.
In a 2006 Kansas City case, a landlord’s lease agreement specifically gave the tenant the right to sole possession of the residence, prohibited illegal activities on or near the premises, and prohibited the unlawful discharge or possession of firearms. During the tenancy, a minor accidentally shot and killed the tenant’s guest. Although the landlord and tenant were both sued for damages, the court found the landlord wasn’t liable because they had granted sole possession of the property to the tenant.
However, if a landlord is aware of a tenant at a multifamily property who possesses a weapon and is acting erratically, it’s the landlord’s responsibility to keep the other tenants on the property safe. It’s recommended to consult with legal counsel to make a determination of the risk to the other residents and the property. If it’s determined that the tenant poses a threat, the landlord should take reasonable steps to mitigate that risk. If guns are allowed, it’s important for the landlord to effectively monitor the property to make sure they aren’t being brandished or misused.
If you allow guns at your property, here are some examples of clauses you may want to consider adding to your lease:
- This is a landlord-tenant relationship and the landlord has no control over your unit or the home. Tenant has sole control of the dwelling unit.
- If you have any firearms, you must keep your weapons inside your unit at all times and out of view of open windows and doors, absent legitimate self-defense or the defense of others.
- If you openly bring a firearm into the common areas, you will be evicted. You must keep your weapon to yourself, safely tucked away in the private confines of your apartment unit or home, and not visible to other tenants, neighbors, or staff.
- Weapons of any kind, including, but not limited to, dart guns, air guns, BB guns, slingshots, handguns, rifles, or any mechanism that could be used to propel an object that could cause harm to a person or property, are not allowed in:
- The common areas
- The office
- On the premises outside of the actual unit
and are not allowed to be displayed, shown, exposed, demonstrated, or exhibited anywhere in the community premises, except in case of:
- Self-defense or the need for imminent and immediate protection of residents’ life or property
- For self-defense or immediate and imminent protection of resident, resident’s occupants, guests or invitees’ life, or property.
If a resident desires to possess a legal weapon in their unit, the resident must safely and inconspicuously carry said legal weapon to and from the resident’s unit in a manner that resident ensures other residents and staff do not see the weapon. Illegal weapons are never allowed visibly on the property outside of the unit. If the resident or resident’s occupants do possess a legal weapon in the unit, the resident shall be responsible for the proper and safe possession, handling, and storage of said weapon. The landlord is not and shall not be responsible in any way to the resident, occupants, guests, or invitees for any accidental, negligent, or intentional act involving any weapon or discharge thereof on, near, or off the property.
Ultimately, every private landlord will need to decide how to approach the subject of guns at their properties based on all sides of the issue. Before making a decision, you may want to discuss it with a lawyer and your insurance broker to ensure that you have all your bases covered.
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