So this is an interesting turn of events:
A landlord can legally prohibit tenants who hold handgun carry permits from bringing their weapons into a rented apartment, according to an opinion from Attorney General Bob Cooper that was released today.
Well, strictly speaking, apartment complexes are private property, so this really should not come as a surprise to anyone. This state has already recognized the ability of private establishments to ban firearms on their property whenever they so desire, and given that apartment complexes are, in fact, private businesses, this seems to fall right in line with the previous state precedent.
Likewise, no one is making one sign a contract with an apartment complex, and if there is something in a contract you do not approve of, you can either strike it from the contract at the time of signing (assuming the other parties are amenable), or just not sign the contract.
It is important to note, for those of us already with rental contracts, that Tennessee State Code 66-28-402(a) clause (6) prevents landlords from retroactively changing the rules and lease you signed when you first moved into your apartment/condo/etc., though they can simply notify you of the change and then enact it if they so desire.
This opinion (which, I would also point out, is simply an opinion, and is in no way legally binding) certainly does raise some interesting quandries for those of us who live in apartments… Thankfully, our lease contract is good through this time next year, but are there any lawyers out there who would be willing to test this opinion on a pro bono basis? Pretty please?
Unfortunately, though, it would appear as though some of our local representatives need a refresher course on the Constitution:
[Rep. Tony] Shipley said the Fourth Amendment to the U.S. Constitution would apply to someone living in an apartment to prevent law enforcement officers from entering without a search warrant.
“If the Fourth Amendment applies, why doesn’t the Second Amendment apply?” he said. “Can a landlord say you give up free speech, under the First Amendment, in the apartment? I think not.”
Representative Shipley is absolutely correct – the Fourth Amendment applies to law enforcement officers, not the apartment complex in question. As with all Amendments, it and the Second only apply to the government, not individuals and not private companies/enterprises/establishments. Hell, we are actually having to go out of our way to prove that the Second Amendment really does apply to states, something that never should have been in question.
And to answer his second question, let me tell you a little story. My parents recently gave me a Culpeper Minute Men flag, a flag I proudly flew off the balcony of my apartment unit. That flag is no longer there, not because someone took it, not because the wind destroyed it, but rather because I struck it – our apartment manager left us a very polite little note, letting us know that the displaying of flags on or from our apartments is strictly not permitted. We went and spoke with said manager, and after a half an hour of beating our heads against a pre-programmed bureaucrat, we left with this short take-away: we would not even be permitted to fly an American flag from our balcony, even if no one complained. After all, we would not want to upset anyone who found an American flag offensive.
And, unsurprisingly enough, this blanket abrogation of my First Amendment rights was completely backed up by rules and regulations in the lease I signed when we first moved into the apartment.
So yes, Representative Shipley, landlords can and do say that we residents have to give up our free speech, under the First Amendment, in and around our apartments. It is the contract we signed, and they are completely within their rights to hold us to it. I really and truly appreciate what you are trying to do, but it would help if you had your facts in order before you started trying to help us.
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For your opinion to hold water, one would have to then assume that the landlord can enter your apartment at any time (since he isn’t violating your 4A rights) and then allow the police to enter and search, with the apartment being his private property and all. This would mean that a tenant has NO RIGHTS whatsoever.
Your flag example holds no water- you were chastised for DISPLAYING a flag, not possessing a flag. If the landlord wants to tell me that I cannot shoot a gun off the balcony, that is comparable to flying a flag. Mere possession of a gun and possession of a flag is more comparable.
For example, see how far your landlord gets if he passes a rule banning possession of a Quran, a Torah, or a Bible.
I do not agree with this position, and I think that this would not stand up to a court challenge, or at least not in many states. You just convinced me that TN is not the state I want to retire to, especially when this ruling is connected to a ‘no guns in parks’ rule.
I hate to break it to you, divemedic, but he can. In fact, it clearly delineates the specific circumstnaces, in our contract, when representatives of our apartment complex can (and, in fact, will) enter our units. In point of fact, every apartment contract I have signed (and having a military background, that is a couple, in equally-many states) has said something along similar lines.
Also, a secondary clarification – I was not drawing parallels between my flag display and owning a firearm, and I made that quite clear in the original post. In fact, I was answering the Representative’s question – the apartment complex telling me to take down my flag was a blatant and absolute abridgement of my First Amendment rights. However, if I refused, I would be in breach of the contract I signed, and the apartment complex would be completely within its rights to evict me.
And, you know what? I agree with that. I signed the contract, it is my duty to uphold my end of it.
If you do not want to retire to TN, that is certainly your call, but it is a fair sight better than probably the majority of the states in the Union. As for the laws in question – guess what: they change. They changed this past year, and they might just change next year. But, hey, if you do not want to be involved in the process, others are willing to take your place.
I normally wouldn’t return to such an old post, but I just got an email pointing me here, because of a comment made by another reader, and it brought your comments to my attention.
Please do not think me rude for responding, as it is not my intention to flame or argue, merely to educate. Please read the following to learn more about landlord right of entry:
http://www.tenant.net/Other_Areas/Calif/misc/nffland.html
Not being familiar with case law in TN on the subject, I can quote TN statute to you (emphasis added):
66-28-513. Remedies for abuse of access.
(a) If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access,
or terminate the rental agreement. In either case, the landlord may recover actual damages and reasonable
attorney’s fees.
(b) If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated
demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the
tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental
agreement. In either case, the tenant may recover actual damages and reasonable attorney’s fees.
So it seems that there are limits in TN to the landlord entering your rented premesis.
I am certainly not disagreeing that there are limits as to how a landlord can enter rented property, simply pointing out that the Fourth Amendment simply has no bearing in this particular situation… And if one signs away one’s other rights, the first and Second do not either.