The libertarian in me says that a landlord is a property owner, and ought to have pretty much plenary control over his property. But landlord-tenant law has been part of the landscape in state law for some time, and it seems to me that this kind of policy is something that directly impacts the health and welfare of residents, much like having a fire extinguisher or a smoke detector. I would think this is something the Tennessee state legislature can fix with a simple law change.
17 thoughts on “Could He Prohibit Fire Extinguishers?”
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Even if you rent an apartment, it’s legally considered your home, as that’s part of the assumed agreement between tenant and landlord. And because it’s your home you have all the rights of a homeowner, such as castle doctrine protection, and you can’t sign that away.
Heller declared that we have a constitutional right to own guns in our home. If Heller is applied to the states, this landlord ability to ban guns should disappear on its own. You can’t sign an agreement to lose your civil rights. HOA’s are still fighting that on political signs, but from what I’ve seen they’re mostly losing. Given past rulings I’d assume they’d lose on this point as well.
Heller declared that we have a constitutional right to own guns in our home. If Heller is applied to the states, this landlord ability to ban guns should disappear on its own. You can’t sign an agreement to lose your civil rights. HOA’s are still fighting that on political signs, but from what I’ve seen they’re mostly losing.
You can absolutely sign away rights through contract. Otherwise employers would be bound by first amendment protections, search and seizure laws, would be forced to allow guns, etc, all without any legislative action. Landlord-tenant law is the same way. It doesn’t become automatic, because the constitution doesn’t apply to relations between private parties. But the states can regulate the relationship between a landlord and his tenants using its police power.
And HOA’s have largely been winning on the sign bans when they are taken to court.
I’d disagree on principle; I’d say that a landlord _does_ have the right to ban fire extinguishers, and a prospective tenant has the right to decline to enter into a contract with that landlord for use of his property if those conditions aren’t acceptable. Of course, this is a matter of principle, not of current legal precedent; I’d also say it’s fine to rent an apartment without a fire escape if the tenant agrees to it.
What bothers me is that the TN AG says landlords can prohibit guns either through the terms of the lease _or_ through the posting of “no guns” signs, which seems to me like an after-the-fact unilateral change to the terms of the contract.
The scenario that jumps immediately to mind is a burglar being shot while breaking into an apartment, then suing the landlord for allowing guns. So the law does need to be clear on who gets to allow or disallow guns in rental properties.
I suspect the landlords are more concerned about being held liable for one of those 3 billion doe-eyed children we’re told die every second in tragic gun accidents.
It’s the same reason so many companies bar their employees from carrying weapons. They see a potential liability, their lawyer-sense tingles, and a rule is born.
You can make a health and welfare argument for state interference in the landlord tenant relationship. I am not an anarchist, and even though I believe in the state staying out of most private affairs, it does have an interest in regulating private contracts in some instances. You don’t want, for instance, landlords creating fire traps, or allowing conditions which are detrimental to public health.
Even if you don’t like a health and welfare angle for state interference, how about the state exercising its military powers to ensure that residents of the state are permitted to keep and bear arms in order to become proficient in marksmanship as part of the militia?
Meh. A fire trap in a city endangers other people’s property, and a bona-fide public health hazard harms people who aren’t party to the rental contract, so no issues with regulating that kind of thing. But I don’t mean to nitpick your examples; if there’s a health and safety issue that only directly threatens the tenants, then I think it’s their decision to take that risk if they think it’s worth the affordability, location, or other benefits of the apartment. I don’t think it’s a proper use of state power to tell a consenting party that he can’t enter into a contract because the state knows better what promotes his health and welfare.
As far as posession of arms for state militia preparedness, I don’t think that overrides the property owner’s right any more than a state law empowering citizens to use force in the prevention of felonies overrides a restaurant owner’s right to bar concealed carry on his property. If a state created an _obligation_ to forcibly stop felonies or to be prepared to muster on the town green, then it would presumably be de facto impossible to make a legal contract to rent an anti-gun apartment or to enter an anti-gun restaurant.
Don’t get me wrong; I’m not too hardcore on this one. I think it’s _ideal_ for a government to stay out of private contracts except to punish those who break them, but some minor oversight isn’t a no-turning-back step into fascism. The greatest actual risk, IMO, is the almost inevitable regulation creep, which is a separate issue. Basically, as long as the standard’s consistent and within the lawful jurisdiction of the rulemaking body–for example a state law (but not federal) holding that a property owner can’t burden the exercise of Constitutionally protected rights in property rented as a home–I’d vote against it but wouldn’t cry tyrant. This is _well_ inside “I disagree, but we can compromise” territory.
Sebastian,
Do you know what the rationale was for prohibiting peasants from owning weaponry in the dark ages? It was because the nobles owned all the land, including the land upon which the peasants lived and worked. The nobles’ property rights were considered supreme over any human rights the peasants might have wished to claim.
As a libertarian, I think human rights absolutely trump property rights. Self-defense is a human right.
Pax,
I believe the libertarian philosophy would be the other way around ….. my property rights trump your human rights with regards to my property.
As far as I am concerned, if you are a consenting, legal, of-sound-mind adult, and you sign the contract of your own free will and volition, yes, a landlord can ban fire extinguishers and the like… or whatever else he and you agree upon. As soon as your pen leaves the paper of a contract’s signature, you are honor- and duty-bound to uphold your end, or face the consequences of being in breach.
But, then, coming from a military background, I probably have a slightly-different-than-norm view of contracts…
Do I ever stand corrected … I thought I knew what I was talking about there. Sorry.
There are a few states that don’t allow HOA’s to limit political signs, but it’s specific law and not constitutional. Ooops.
It’s weird. FCC laws (from what I’ve read) don’t allow the banning of small satellite dishes, even by landlords … but again, specific rule, not a right.
Oooooops.
HOA’s are very interesting entities. Technically speaking they act as governments, but are considered private contracts, and the courts treat them as such. I avoided HOA affected homes when I was buying a home, specifically because I don’t want snooty busybodies trying to tell me what to do. But I don’t see how it’s different from a town from a practical perspective, except that a town can usually exercise police powers on behalf of the state, and enforce ordinances in accordance with state law.
What will make HOA’s disappear is if homeowners just say no. Don’t buy a house that has an HOA tied to it, or if you do, and you’re in a situation where it’s practicable, start a movement to disband your HOA. Though some situations, like a townhouse, where certain costs are shared, you might need to have one, but you can at least limit the scope of the HOA to that which is necessarily collective.
I would never own a house in a restrictive HOA area. Though my current subidivision does have an HOA, participation and payments are voluntary and they have very little power. I did get a notice for putting trashcans beside my house, but I decided that was rude to my neighbors anyway so I built a fence around them. The only other restriction that matters is I have to keep my camper behind a 6 foot fence, but even though it sticks up that’s acceptable.
But … every new house built in the immediate metro area is built with hard core HOA’s that have to approve the color you paint your house, landscape choices, etc. And people actually want them, though I know from many friends living in them that each of these neighborhoods have people who consider it their full time job to drive around writing up the least infraction and everybody gets warning letters/order to change something. Sometimes at great expense or labor.
And I know the people who get involved in our voluntary HOA constantly lament that they can’t push for harsher restrictions and new rules.
So don’t look for people to rebel against HOA’s anytime soon. At least here in the Denver area, they seem to love them.
A landlord can’t prohibit a catholic or black from obtaining a lease, but he can prohibit them from exercising full self-defense rights by banning firearms? Figures.
I suspect HOAs flourish in areas with weak zoning. Frex, in NJ you don’t hear much of them outside of townhouse communities/retirement communities (special cases, both). But they’re all over NoVA.
Essentially, they’re zoning entities inside their demesne.
I’m of the following opinion. In a lease/rent situation. The rented apartment should for all intensive purposes be as if it were owned by the renter. Excepting those aspects of which affect or potentially affect the direct value of the property.
In other words, a renter can’t start chopping down trees, knocking down walls or altering the building. And inversely a landlord can mandate the inclusion of smoke detectors and fire extinguishers as basic protections of his property.
But on the use of the property, I do not believe a landlord should be able to say. So long as said use does not involve criminal behavior or disruption of the surround neighborhood.
(ie: You don’t have the right to rent a place and open a brothel, leave your junk all over the yard, or blast music at 3am in the morning.)
If I have a landlord that says that I can not have firearms in my home, I’m going to anyway. I would rather be judged by a jury for having a weapon than carried by twelve for not having the weapon.