Q: We own several large apartment complexes. After all that’s happened recently, we have decided that we do not want firearms on the property. Can we prohibit tenants from keeping them on the premises? Our manager says no, that people have a constitutional right to keep arms. –Dave and Bea M.
A: You do have a legal right to prohibit the keeping of firearms at your properties, just as you can prohibit tenants from keeping pets or parking oversize vehicles in your parking lots.
Your manager’s concerns are a bit off the mark: The United States Constitution (specifically, the Second Amendment, which concerns the people’s "right to bear arms") is aimed at the government, not at individuals like you. So, while recent Supreme Court decisions have struck down attempts to restrict gun ownership, these cases have all involved states or localities whose laws have been found to infringe on the amendment. You are neither a state nor a locality. You are simply a business owner who has wide latitude in deciding how your run the business.
Should you instigate such a policy at your properties — more on how to do that below — you should be prepared for another argument you’re likely to hear. "That’s discrimination against gun owners!" will surely be lobbed your way. Again, nothing to fear, legally. That’s because gun owners are not a protected group under federal, state or local laws.
Unlike members of a race, religion, ethnicity and so on, gun owners enjoy no protection from negative treatment aimed at them simply because they happen to own guns. You certainly can’t target protected groups with your policy, such as applying it to members of a particular race only, but you can refuse to rent to every applicant who wants to keep guns on the property.
Now you must think about how to implement your new policy. For those tenants who have leases, you’ll have to wait until the leases are up to insert your new clause. You can’t impose your new rule on tenants who are midlease, because doing so would entail a unilateral change in an important term or condition of the rental, which is exactly what a lease is intended to prohibit. But if you have month-to-month tenants, you can announce your new policy with proper notice, which is 30 days in most states. Tenants who are unhappy with the new rule will presumably refuse to sign your new lease or monthly agreement. If they don’t move out voluntarily, they’ll be candidates for eviction.
It will be very difficult, however, to ensure that tenants are following your new policy. Unlike a ban on pets or oversize vehicles, it will be tricky to enforce a gun ban because it may be very hard to catch rule-breakers. Landlords and neighbors can readily see pets and RVs, but it’s quite possible that people will keep guns without anyone ever knowing about it.
Privacy laws in most states will prevent you from inspecting your tenants’ homes for evidence of violations. And ironically, if rule-breaking tenants take steps to keep firearms out of reach and locked away (as they should for safety reasons), it will be harder still for you or any guest or repairperson to spot them while in the unit on legitimate business.
Q: I’ve been a month-to-month tenant at the same property for many years. The owner told me that his finances are shaky and he may lose the property to foreclosure. Wanting some protection, I asked for a long-term lease, which the landlord gave me: a five-year lease at market rates.
Two months later, I got a notice of trustee’s sale. The property was bought at foreclosure by an investor, who gave me a 90-day notice to vacate. But because I have a lease, don’t I have a right to stay? –Ella
A: In most situations, tenants with leases can live out the length of their lease when the property is sold at foreclosure. The common exception involves someone who buys at the trustee’s sale, and who intends to live on the property as the buyer’s principal residence. In that case, if the lease was signed after the mortgage or deed of trust was recorded (or if the lease declares that it will be "inferior" to any subsequently recorded mortgage or deed of trust) the buyer may terminate the lease with 90 days’ notice. This rule comes to us courtesy of the 2009 Protecting Tenants in Foreclosure Act.
So far, so good, you’re no doubt saying, because the buyer is an investor, not someone intending to live on the property. But there’s an important set of qualifications for those who want to take advantage of the lease survival part of the federal law. These tenants must be "bona fide," which means, in part, that the leasing transaction in question was carried out at arm’s length. (To further explain this requirement, the law even specifies that the tenant must not be the spouse, parent or child of the former owner.) To be bona fide, the tenant must also be paying market rates. These qualifications are intended to prevent "sweetheart deals" made in order to thwart a buyer’s otherwise legal right to end the lease.
The answer for you, then, comes down to whether a judge would view your landlord’s last-minute offer of a five-year lease, to someone who had been renting for years on a month-to-month basis, as a non-arm’s-length transaction. It may be evidence of an intent to avoid the consequences of a trustee’s sale. It doesn’t look too good for you: You have admitted that the lease was your idea, to give you some security in the face of an impending foreclosure.
However, it’s in your favor that you are paying market rent. And of course, clever businesspeople plan and take precautions all the time, in order to maximize profit and minimize risk, all without breaking the law. Still, if you refuse to move and end up contesting an eviction on the grounds that you’re a bona fide tenant, you’ll need all your powers of persuasion to convince a judge.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at firstname.lastname@example.org.
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