Loaded carry in "common area" of townhome complex

[ptoguy2002]

I own my townhome, and am a 1/20th owner in the "common area" of the townhome complex, which is the alley way, and guest parking in the back.
Recent concerns have me wondering: Is it legal for me to open, or concealed, carry loaded in the common areas of the complex?

[NiteQwill]

I believe that a common area is a big grey area since it technically isn't "your" residence.

[Liberty1]

I own my townhome, and am a 1/20th owner in the "common area" of the townhome complex, which is the alley way, and guest parking in the back.
Recent concerns have me wondering: Is it legal for me to open, or concealed, carry loaded in the common areas of the complex?

Buy the book "how to own a gun and stay out of jail".

A lot of good and "bad" case law info can be found there. Concealed carry is OK imo (read PC 12025 and the exemption in 12026).

Loaded carry depends on if PC 12031 applies. Is the common area also a "public place"? That is the question you want to have answered. And due to a bad decision in "Overturf" I recommend getting the opinion of an attorney to see if "Overturf" might be used against you on that specific property.

If the entire property is enclosed by fencing then I'd say 12031 doesn't apply. I say it doesn't apply even without it but I'm not a god or a judge:(.

All this will change in the months/years after incorporation!

Check out californiaopencarry.org (http://californiaopencarry.org/) (there is more info then just OC) for more info on the laws and DO buy the above mentioned book.

Unloaded CC or OC with separate loaded mag. is certainly no crime on property you lawfully possess. Only question is does 12031 (loaded prohibited) apply. If not then load up.

read this too http://www.calguns.net/calgunforum/showthread.php?t=103660

[sierratangofoxtrotunion]

Hmmm, I could guess. If you own a 1/20 share of that common area, I'd say that's your private property (as well as that of 20 other people) and that you could carry. Wouldn't preclude somebody from calling the cops, and even if the cop indeed figured you could, he'd advise you not to so as to not cause trouble.

Do I know what I'm talking about? Haha, hell no, don't listen to me.

[Ironchef]

I think the simple answer is the best one here. It's "also" their property and my not have the right to 12031 in their property. If you want (and probably if you could give a good reason), maybe talk to your neighbors and ask them their thoughts, since in the end, it'd be them who'd object.

[ptoguy2002]

Its private property, but the alley way and parking lot is not blocked by a fence or gate. Anybody can walk or drive from the city street and go back there, which is part of the problem.

[stphnman20]

This is definitely a "grey" area..

I suggest, dont do it.. You may think it ok to carry in these common areas but if the other owner see you with a load weapon, i'm pretty they will call the cops..

[ptoguy2002]

Wow, that overturf decision was pretty stupid, but actually kind of applies.
I guess the answer is no.

[Liberty1]

Many of us don't think Overturf would stand a new challenge by a more "worthy" suspect in a defensive situation. But one would need to be convicted and appeal to begin the process to overturn it.

Keep in mind CC unloaded with separate concealed mag while on your prop. (even commonly owned) is an option imo.

Personally, I'd have no problem with CCing loaded and not worrying about Overturf/12031 (if it even applies) on property I own (even commonly). It would only see daylight if you needed it. And if you never shot how would anyone prove it was loaded?

If I was OCing, I'd probably UOC.

Does your homeowners association have any rules about gun ownership?

[Theseus]

I might disagree...My apartment building is private property, but not fenced off from the public. It is not a public place.

I rent an apartment here and am assigned a car port. I believe that my right to enjoyment includes the front yard, the driveway, the car port and any of the private property.

Now, I can not carry in the homes of the others, but I don't believe they have the right to tell me to get out of a mutual common area because I have a gun. I do agree with the fact that you should discuss with them, just to be a good neighbor.

[Theseus]

AD.

[ptoguy2002]

It all comes down to "public place or public street" which I guess is debateable in my case.
Maybe some "Private Property - No Trespassing" signs are in order?

[gunn]

Now, I can not carry in the homes of the others, but I don't believe they have the right to tell me to get out of a mutual common area because I have a gun. I do agree with the fact that you should discuss with them, just to be a good neighbor.

Why provoke the bear if he's asleep? You can conceal carry in your own home. If you decide that the common areas are part of your "own home", then by all means exercise what you feel is a right.

I see no reason to bring it up with the neighbors "hey, I'm planning on walking around armed in the common areas." As long as your activities do NOT curtail your neighbors enjoyment of the common spaces (you aren't shooting practice targets in the common areas), why bring it up?

Keep in mind though that your neighbors, if they ever find out, might label you as a gun nut and send the cops after you. Then it's a legal issue between you and the cop.

Perhaps this says something about living in an urban environment vs. a smaller neighborhood/town where everyone knows everything about everyone else, but the less my neighbors know about my activities the better. I get along with my neighbors but they are by no means my "friends". As long as they keep the common areas clean (this has happened with varying degrees of success) and aren't loud enough to curtail my enjoyment of my own abode (less succesful), I see no reason to **** with them or vice versa.

Summary: IMO, you may be asking for trouble by carrying in the common areas. Do whatever you want but CA isn't Texas. You are better off being discreet vs. vocal about your beliefs.

-g

[Omega13device]

Its private property, but the alley way and parking lot is not blocked by a fence or gate. Anybody can walk or drive from the city street and go back there, which is part of the problem.

This came up in another thread (http://www.calguns.net/calgunforum/showthread.php?t=94430) in which I did a close reading of the code and we had a lot of discussion about it.

Based on my reading of the code, which I have cited and linked to below (read it yourself, I am not an attorney and am not giving legal advice) my interpretation of the code is that you can carry however you want either 1) inside your own residence, or 2) outside your residence in a private area of YOUR property (blocked off from the public by a gate or fence).

Outside your residence, in a non-private area of YOUR property, you can carry UNLOADED, either open or concealed. You may NOT carry loaded at all.

Of course this assumes you don't have a concealed carry permit, you're not a prohibited person for some reason (under 18, felony conviction, gang member, etc.) and that your actions aren't prohibited by some other law.

If you want the details read on.

12026 deals with carrying open or concealed (loaded carry is covered in 12031). Here's a quote from the other thread mentioned above.

Here is some of the relevant code for you but you can find all of 12020 to 12040 at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=12001-13000&file=12020-12040. You should review all of it since reference is made to 12025 and other sections. It wouldn't hurt to consult a lawyer if that makes you feel more comfortable.

12026. (a) Section 12025 shall not apply to or affect any citizen
of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within
the excepted classes prescribed by Section 12021 or 12021.1 of this
code or Section 8100 or 8103 of the Welfare and Institutions Code,
who carries, either openly or concealed, anywhere within the citizen'
s or legal resident's place of residence, place of business, or on
private property owned or lawfully possessed by the citizen or legal
resident any pistol, revolver, or other firearm capable of being
concealed upon the person.
(b) No permit or license to purchase, own, possess, keep, or
carry, either openly or concealed, shall be required of any citizen
of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within
the excepted classes prescribed by Section 12021 or 12021.1 of this
code or Section 8100 or 8103 of the Welfare and Institutions Code, to
purchase, own, possess, keep, or carry, either openly or concealed,
a pistol, revolver, or other firearm capable of being concealed upon
the person within the citizen's or legal resident's place of
residence, place of business, or on private property owned or
lawfully possessed by the citizen or legal resident.
(c) Nothing in this section shall be construed as affecting the
application of Section 12031.

Note that the word "carry" or a variant is explicitly used, and it talks about both open and concealed, as well as private property owned OR lawfully possessed.

Now onward to 12031. It basically says you may not carry loaded and then lists a series of exceptions. Where Overturf comes in is 12031 (h) which says:

(h) Nothing in this section shall prevent any person engaged in
any lawful business, including a nonprofit organization, or any
officer, employee, or agent authorized by that person for lawful
purposes connected with that business, from having a loaded firearm
within the person's place of business, or any person in lawful
possession of private property from having a loaded firearm on that
property.

Now note in this case that the word "carry" is never used. Just "have" or "having". In the Overturf case the accused was carrying a loaded firearm in a public area of his property (he owned the apartment building and was on the front lawn, I believe). The judge believed that the concept of "having" was basically about possession and didn't include carrying. It didn't help that 12026 explicitly mentions carrying along with "keep" and "possess", while 12031 only mentions "having". So the judgment was that the private property exception in (h) did not protect him.

[CSDGuy]

If your apartment grounds are open to the public (not fenced off), that would be considered a public place. 12025 and 12031 would apply. If the grounds are fenced off and nobody gets in without being invited, you'd be in a gray area. The other owners might also be considered members of the "public" for purposes of 12025 and 12031... It would be risky. For now. Once the 2A is incorporated, the question of 12025/12031 legality would have to be answered...

[ptoguy2002]

Does your homeowners association have any rules about gun ownership?

Nothing stated in the HOA about guns, I looked for that specifically.

[Mute]

I doubt your CC&Rs have anything about it, but I'd check that first.

[rabagley]

Buy the book "how to own a gun and stay out of jail".

A lot of good and "bad" case law info can be found there. Concealed carry is OK imo (read PC 12025 and the exemption in 12026).

Wow. Mad props, dude. Had no idea such a book had been written. My new (used) copy is being shipped to me as I write this.

[rivviepop]

Nothing stated in the HOA about guns, I looked for that specifically.

What could a HOA legally say about guns in this regard, if they had? Some rule about not having one in common areas or something like that?

(I'm a renter in a similar situation, HOA-controlled building with private common area -- I've never seen the HOA rules, though, and am curious)

[Liberty1]

If your apartment grounds are open to the public (not fenced off), that would be considered a public place. 12025 and 12031 would apply.

12025 doesn't apply on private proprty per 12026a ("public place" notwithstanding), 12031 may; in Overturf the "front yard" did apply 12031's prohibition. For the OP the private alley and carport may not be a "public place". This has not been adjudicated and is not clear one way or the other.

[Liberty1]

What could a HOA legally say about guns in this regard, if they had? Some rule about not having one in common areas or something like that?

(I'm a renter in a similar situation, HOA-controlled building with private common area -- I've never seen the HOA rules, though, and am curious)


HOA's place a lot of restrictions which signatories are civilly liable to follow; paint colors, no motorhomes, no fences, no pets, no children...

[mrjones98]

Mine won't let me discharge any guns within the complex. Funny that they added that considering it's already (generally) illegal...

I doubt your CC&Rs have anything about it, but I'd check that first.

[ptoguy2002]

Thanks for the input Liberty( and everybody else), your an asset to the calguns community.

[ptoguy2002]

Oops.

[MudCamper]

Don't ask your neighbors anything. Don't tell your neighbors anything. Really bad ideas. Always.

Carry concealed is OK IMO, since you own the property. If you are worried about 12031 vs "public" area then a Private Property No Trespassing or Tennants Only sign will alleviate that.

[Omega13device]

If you are worried about 12031 vs "public" area then a Private Property No Trespassing or Tennants Only sign will alleviate that.
How do you know that? Please cite PC or case law.

[movie zombie]

if it really is a condo, then you own merely the air space and an undivided interest in the common grounds.

this gives good definitions and these definitions do NOT vary by state:

http://www.atlantatownhomes.com/default.asp?page=/ownership.htm

unless your paperwork says you have 1/20th, the common grounds are an undivided interest. maybe what you have is coop ownership instead?

regardless, i'd carry in my condo but talk to a real estate attorney about just exactly my rights are re carrying open or otherwise with an undivided interest in the commons.

movie zombie

[MudCamper]

How do you know that? Please cite PC or case law.

I don't know that. It's just how I would choose to interpret it. movie zombie has much better advise - ask an attorney. But here's how I see it.

First, 12031 does not apply in your residence or on your provate property:

(h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.

(l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.

So, does the common area of your condo, which you are part owner, and which is your residence, apply? Some argue no, because the public have access. So, take away their access. How do you do that? One way is gate it. If you can't do that, put up No Trespassing signs. If you do that, the public does not have legal access, and if they enter they are breaking the law.

Now I thought this was true because of the "posted" trespassing laws, which are PC 554 and 554.1, but I just read them, and it seems that is for damn, quarrys, power plants, etc. only, and not residences. Hmm. I will continue to look for trespass laws with regard to other private property or residence. I'd be shocked if I discover that it's perfectly legal to trespass on most private property, but who knows...

[CSDGuy]

Look up PC 602...

If the area is open to the public and you don't actually own it, 12025 and 12031 apply. IIRC People v. Clark established that firearms can be loaded within a place of business but not outside the building. I would consider "place of residence" in a similar light, as long as you're in an area where the public can readily get to. For instance, my backyard is fenced in. Not a public place, therefore 12031 wouldn't apply. My front yard isn't fenced in. I own that property. 12031 does apply there because there's nothing restricting access. It's publicly accessible privately owned land. If I fenced it off, that would change everything...

[Liberty1]

put up No Trespassing signs.

Signs have no force of law in PC 602 (except for some commercial/agri. property). Trespassers need to be told to leave first.

Although I do believe that having the signs up might help if one was at the appellate level (I don't have much hope for the trial court to be on our side) and wishing to create new case law over 12031 (better to have the signs then not).

Which 12031 court case gives an example of a "public place" as a "supermarket parking lot"? This language indicates that the inside of the store (even though it is open to the public) is NOT a "public place".

[MudCamper]

602. Thanks. OK I read it. Very very very long. Lots of different circumstances. And you don't have to have been told to leave. That's just one, of very many different subsections, where you then violate 602. But this is the misdemeanor trespass section.

Then there's 602.8, and it is just an infraction, and all you have to do is pass a No Trespassing sign and you are in violation.

602.8. (a) Any person who without the written permission of the
landowner, the owner's agent, or the person in lawful possession of
the land, willfully enters any lands under cultivation or enclosed by
fence, belonging to, or occupied by, another, or who willfully
enters upon uncultivated or unenclosed lands where signs forbidding
trespass are displayed at intervals not less than three to the mile
along all exterior boundaries and at all roads and trails entering
the lands, is guilty of a public offense.
(b) Any person convicted of a violation of subdivision (a) shall
be punished as follows:
(1) A first offense is an infraction punishable by a fine of
seventy-five dollars ($75).
(2) A second offense on the same land or any contiguous land of
the same landowner, without the permission of the landowner, the
landowner's agent, or the person in lawful possession of the land, is
an infraction punishable by a fine of two hundred fifty dollars
($250).
(3) A third or subsequent offense on the same land or any
contiguous land of the same landowner, without the permission of the
landowner, the landowner's agent, or the person in lawful possession
of the land, is a misdemeanor.
(c) Subdivision (a) shall not apply to any of the following:
(1) Any person engaged in lawful labor union activities which are
permitted to be carried out on property by the California
Agricultural Labor Relations Act, Part 3.5 (commencing with Section
1140) of Division 2 of the Labor Code, or by the National Labor
Relations Act.
(2) Any person on the premises who is engaging in activities
protected by the California or United States Constitution.
(3) Any person described in Section 22350 of the Business and
Professions Code who is making a lawful service of process.
(4) Any person licensed pursuant to Chapter 15 (commencing with
Section 8700) of Division 3 of the Business and Professions Code who
is engaged in the lawful practice of land surveying as authorized by
Section 846.5 of the Civil Code.
(d) For any infraction charged pursuant to this section, the
defendant shall have the option to forfeit bail in lieu of making a
court appearance. Notwithstanding subdivision (e) of Section 853.6,
if the offender elects to forfeit bail pursuant to this subdivision,
no further proceedings shall be had in the case.


But I'm getting way off topic at this point.

[Liberty1]

I've only used 602 "O"

(o) Refusing or failing to leave land, real property, or
structures belonging to or lawfully occupied by another and not open
to the general public, upon being requested to leave by (1) a peace
officer at the request of the owner, the owner's agent, or the person
in lawful possession, and upon being informed by the peace officer
that he or she is acting at the request of the owner, the owner's
agent, or the person in lawful possession, or (2) the owner, the
owner's agent, or the person in lawful possession. The owner, the
owner's agent, or the person in lawful possession shall make a
separate request to the peace officer on each occasion when the peace
officer's assistance in dealing with a trespass is requested.
However, a single request for a peace officer's assistance may be
made to cover a limited period of time not to exceed 30 days and
identified by specific dates, during which there is a fire hazard or
the owner, owner's agent or person in lawful possession is absent
from the premises or property. In addition, a single request for a
peace officer's assistance may be made for a period not to exceed six
months when the premises or property is closed to the public and
posted as being closed.

now I know about .8.a !

[Omega13device]

We can speculate on private/public but it's just that: speculation.

What is clear is that 12026 allows carry in those common areas, as long as it's unloaded, either open or concealed. But if you carry loaded in the common areas you are taking your chances on ending up in an Overturf-type situation.

[swhatb]

Overturf needs to be over-turned. Do what you feel comfortable with and with your understanding in 12026. IMO.

BTW don't ask your neighbors anything. Don't tell your neighbors anything. Really bad ideas!