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SixDemonBag
11-05-2005, 8:06 PM
A recent lapse in security allowed the master key for my building to be stolen and has made me ponder some things. One thought was in regards to carrying concealed in the builiding. I know carrying on your property is fine, what would the law be on carrying else where in your building?

My building is buy only, so technically the entire building is partially owned by all who reside in it. Would common areas/parking garage all fall into the catagory of 'my property'?

PanzerAce
11-05-2005, 8:14 PM
Hmmm, I would say that since you all have a stake in the property, you legally could CC on the property. However, as I am not sure of all the legal issues, and do not know what the purshasing agreement looks like, Dont take my word for.

1911_sfca
11-05-2005, 8:25 PM
I live in a condo and have wondered about the same thing. I came to the same conclusion as Panzer -- the common areas are partially owned by each condo owner, and thus you're legally in your residence anywhere on the property. I feel free to carry open in my place, but don't do so in common areas, just to avoid freaking out the neighbors. But concealed carry should be A-OK (my opinion only, not a lawyer).

PanzerAce
11-05-2005, 9:29 PM
yah, depending on the other people, you might want to ask them if they would be ok with you carrying. If know that you are a gun person, and are not hating you for it, that would probaly be the easiest way. but once again, it really matters what they would say.

bwiese
11-05-2005, 9:38 PM
That's (semi)public area. It's called common area.

It is under the control of the HOA (homeowner's association). Behaviors are regulated by CC&Rs that you signed. The HOA determines which behaviors are prohibited (dangerous, noisemaking, etc.) CCW inside common area would not be considered your property. You just have a right to use it.

In condominium ownership, combined with HOA membership, you own an undivided share of the community. 200 units? You own 1/200th of the HOA. You don't even own the unit itself - you own the right to live between its walls; you own "from the inside paint inwards". Most condos you can't dig behind the walls and change your plumbing, for example - because it's not your plumbing, and not your wall.

This CCW stuff would be regarded similarly to apt complexes. CCW outside your apt and you're illegally carrying.

Furthermore, for the HOA to approve the board of directors would have to approve. You can't just have the property manager, "Joe", say it's OK. The BoD likely wouldn't approve due to insurance concerns - especially if you didn't have a CCW permit!

Material in this vein is treated in Machtinger's "How to Own a Gun in California and Stay Out of Jail".
Get it, read it, understand it, and if there are fine-line questions, call a lawyer.



Bill Wiese
San Jose

artherd
11-05-2005, 10:27 PM
Public area of Private Property. (legal so far) but also a Semi-Public area that you only own 1/200th. I doubt you would get away with

You likely actually don't own 1/200th of anything but the managing entity. This is not a voting majority concern, so you cannot elect on your own to give yourself permission to carry.

See Bill's info above.

Now, there is also precident in California for in addition to private property, a temporary campsite is also legal for CCW. I have only covered the private property angle.

Practically speaking? Any cop or DA who prosecutes you for CCW in your own apt building is likely to be in for a big loss if you have quality representation.

1911_sfca
11-05-2005, 10:53 PM
No, that's wrong. You do own a portion of the common area, in fact you own a certain percentage (defined according to your specific development) of the entire footprint of the building. It's not just the "HOA" that you own a portion of.

As Bill mentioned, the CC&Rs govern what's acceptable behavior in common areas. But moreover, they also define what's acceptable behavior in your unit. However, this is subject to local / state / federal law. For instance, my HOA (of which I'm president) has CC&Rs prohibiting hanging signs in exclusive-use common areas, or private areas, which are visible from outside the property. However, this is superceded by a California law that came into effect on 1/1/04, which is why I can hang a sign (http://www.calguns.net/calgunforum/showthread.php?t=16272) outside.

Anyway, the long and short of it is that I do not agree with the opinion that common areas are equivalent to the hallways of a rental complex. Clearly, this is totally different. The CC&Rs can define "policies", and if they have a specific rule about weapons in common areas, it might be legally binding (mine does not). But in the absence of such a rule, you are legally a part owner of the ENTIRE property, including common area, and thus could legally carry in common areas. Obviously, this is quite different from an apartment complex, where the private property outside your front door is 100% owned by the owner. In a condo complex, you ARE a part owner.

Consult your lawyer, read the CC&Rs, local ordinances, etc. etc...

saki302
11-05-2005, 11:52 PM
When my apartment is done, you can bet I'll be carrying when I go collect rent :D
I was even contemplating getting a security guard's license (armed), a security sticker for my truck, a security jacket, and hiring myself as armed security- then I can legally open carry all the way there, collect rent, and carry all the way home :D
Another Mall ninja!!!

-Dave

SixDemonBag
11-06-2005, 12:30 AM
No, that's wrong. You do own a portion of the common area, in fact you own a certain percentage (defined according to your specific development) of the entire footprint of the building. It's not just the "HOA" that you own a portion of.

As Bill mentioned, the CC&Rs govern what's acceptable behavior in common areas. But moreover, they also define what's acceptable behavior in your unit. However, this is subject to local / state / federal law. For instance, my HOA (of which I'm president) has CC&Rs prohibiting hanging signs in exclusive-use common areas, or private areas, which are visible from outside the property. However, this is superceded by a California law that came into effect on 1/1/04, which is why I can hang a sign (http://www.calguns.net/calgunforum/showthread.php?t=16272) outside.

Anyway, the long and short of it is that I do not agree with the opinion that common areas are equivalent to the hallways of a rental complex. Clearly, this is totally different. The CC&Rs can define "policies", and if they have a specific rule about weapons in common areas, it might be legally binding (mine does not). But in the absence of such a rule, you are legally a part owner of the ENTIRE property, including common area, and thus could legally carry in common areas. Obviously, this is quite different from an apartment complex, where the private property outside your front door is 100% owned by the owner. In a condo complex, you ARE a part owner.

Consult your lawyer, read the CC&Rs, local ordinances, etc. etc...

I'm of this school of thought as well. I don't have a lawyer to consult, unfortunatley, but I have a hard time seeing any legal prosecution arising from a self defense shooting in the building you part own/live in.

1911_sfca, I noticed in another post being a reserve LEO grants rights to CCW as if you were a full time employee....does this hold true for the SFPD? I've been kicking around the idea of becoming a reserve PO for some time and this is a nice benefit, in my eyes, since you're not compensated for your time.

bwiese
11-06-2005, 3:12 AM
...the long and short of it is that I do not agree with the opinion that common areas are equivalent to the hallways of a rental complex. Clearly, this is totally different. The CC&Rs can define "policies", and if they have a specific rule about weapons in common areas, it might be legally binding (mine does not). But in the absence of such a rule, you are legally a part owner of the ENTIRE property, including common area, and thus could legally carry in common areas. Obviously, this is quite different from an apartment complex, where the private property outside your front door is 100% owned by the owner. In a condo complex, you ARE a part owner.

[Before I continue, I assume discussion revolves around unlicensed CCW here.]

Your 'disagreement' is not relevant. I believe an attorney would follow my logic. The part ownership issue would not really be valid unless it were a significant fraction of ownership and you had some mgmt authority.

Furthermore, many condo developments have public access (ungated). Park your car, walk right to or into the building. So the perceived public safety attribute would generally pertain to multiunit residences and not own vs rent.

[The firearms-at-campsite reference discussed above is a separate thing, in that the campsite is the specific area where camp is struck, and firearms might be specifically allowed there - but not broadly roving around that campsite.]

In a somewhat related vein I recall reading in Machtinger's book about unlicensed CCW in businesses. There's a percentage of ownership/ management control thing involved too. This probably extrapolates to this situation.

Let's say you're a Denny's manager. You can't carry CCW or possess handgun in restaurant since you don't own the restaurant (assuming nonfranchise, corporate store). You'd need Denny's corporate approval with chain-of-command raining down from executive channel down to you.

Now, let's say you are a partner in a small restaurant chain and mangage one unit in a 3 unit chain, with you, say, having 20% ownership and site-specfic management responsibility of one site: CCW on that property would be legal.

As the ownership fraction gets reduced below a certain point (10%?), and/or mgmt responsibility (say, asst mgr) gets reduced, the CCWing ability falls aside.

This is covered in Machtinger's How to Own a Gun in California... book, and I unfortunately don't have it right at hand.

Broadly speaking: mere fractional ownership of property, esp when highly diluted (i.e., in a 200 unit complex vs a 4 unit complex) - and combined w/no mgmt authority - means unlicensed CCW in common areas is not wise and probably illegal. I believe, if caught, you'd be certainly popped for illegal CCW.

Furthermore, in many condo/townhome developments [mine, for example] it would be difficult to move about or traverse the develpment without hitting a public street.

In fact I would be extremely careful when transferring firearms from a condo/townhouse (when said townhouse is owned as a condominium) to/from parking lot and I would follow all locked case/unloaded rules.

It should be noted that in many condos (& townhomes in condominium ownership), your patio or deck and even your garage may not really be truly part of your unit, but are considered "exclusive use common areas". This allows HOAs to more specifically regulate behavior in those areas - avoiding junk on decks for appearances' sake, regulating styles of patio furniture, limiting storage of 'stuff' in garages so that you are required to use your garage for parking, requiring you not work on your car in garage, etc.

The 'free speech' sign posting matter is a specific overriding of HOA rules banning sign postings except for small RE signs. That's regarded as extending /protecting free speech since condo owners gave up many rights for perceived benefits of condo ownership. and legislature felt that protecting speech was important. The matters discussed above are much much different than if HOA decided to ban or control residents' in-unit ownership of firearms.


Bill Wiese
San Jose

artherd
11-06-2005, 9:31 AM
Now, let's say you are a partner in a small restaurant chain and mangage one unit in a 3 unit chain, with you, say, having 20% ownership and site-specfic management responsibility of one site: CCW on that property would be legal.

As the ownership fraction gets reduced below a certain point (10%?), and/or mgmt responsibility (say, asst mgr) gets reduced, the CCWing ability falls aside.

This is covered in Machtinger's How to Own a Gun in California... book, and I unfortunately don't have it right at hand.

Broadly speaking: mere fractional ownership of property, esp when highly diluted (i.e., in a 200 unit complex vs a 4 unit complex) - and combined w/no mgmt authority - means unlicensed CCW in common areas is not wise and probably illegal. I believe, if caught, you'd be certainly popped for illegal CCW.

Here is the problem, a 1:200 ownership is not 'signifigant enough' but in a 5 unit condo, the example person owns 1:5 or 20%.

I personally have yet to see ENOUGH case law to make a firm determination as to where 'property owner' is defined for the purposes of CA CCW.

I would regard it as very marginally outside the law in a 1:200 condo unit especially if you were not on the HOA board, etc. However, I would also regard it as a highly defensible charge should one ever occur. What jury would convict?

rkt88edmo
11-06-2005, 9:37 AM
This is an intellectually interesting topic for me. I live in a fairly small townhome complex. All of our entries are ungated & marked Private Prop - No Trespass with some code cite on the bottom. None of our entries lead to what look like residential streets, just turnabouts and carports. I know there isn't a HOA rule against carrying as far as I can tell, though it may fall under disruptive behavior rules. I would consider my entire complex to be private prop. ok to carry as I please. There are some annoying Norteno/14 taggers in the area :mad: that occasionally make some small scribble in our complex.

There was also a fairly new sticker someone put on the sign. "WARNING TAINTED - Medicinal Marijuana Granola" :)

esskay
11-06-2005, 10:21 AM
Interesting discussion... It does make me happy that I ended up with a house instead of that townhouse I was also looking at...

It would be pretty lame (what isn't in this state) if one couldn't legally carry in their own damn townhome down to the trash dumpster and back again.

1911_sfca
11-06-2005, 11:09 AM
1911_sfca, I noticed in another post being a reserve LEO grants rights to CCW as if you were a full time employee....does this hold true for the SFPD? I've been kicking around the idea of becoming a reserve PO for some time and this is a nice benefit, in my eyes, since you're not compensated for your time.

No, reserves do not have automatic off-duty CCW priveleges; there is a specific class of CCW license for reserves, which is valid for 4 years.

You have a 0.001% chance of getting a CCW from SFPD, even as a reserve. However, there are other LE agencies very close to SF that have much more liberal policies than SF regarding firearms (i.e. you can carry any gun from their list on-duty, you can carry a BUG, etc), and which would issue a CCW to a reserve.

1911_sfca
11-06-2005, 11:16 AM
Your 'disagreement' is not relevant. I believe an attorney would follow my logic. The part ownership issue would not really be valid unless it were a significant fraction of ownership and you had some mgmt authority.
[...]

Well, our different interpretation of how the law applies is probably due, in large part, to where we live. You live in the south bay, where sprawling condo complexes with public access and very diluted ownership is common. I live in the city of San Francisco, where most condos are loft or apartment style, in a self-contained, limited-access building -- some large with hundreds of units, but most small with 2-15.

Doesn't really matter what your opinion is, or mine, unless you can point to some case law on the subject.

1911_sfca
11-06-2005, 11:20 AM
No, reserves do not have automatic off-duty CCW priveleges; there is a specific class of CCW license for reserves, which is valid for 4 years.

Oh, one other thing. The above sentence was referring to California law. Active-duty reserves are allowed to carry off-duty, in any state of the union, under Federal law (LEOSA). But be a bit careful doing it without a Cal CCW. Who knows how a crusty SF cop, a hyper DA, or California courts would view the subject? No one has tested it yet.

Refer to this document (http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf), question #3.

delloro
11-07-2005, 10:05 AM
diluted? signifgicant? fractional interest? where does all this come from? unless it comes from a statute, a case, or an opinion of the attorney general, it means nothing.

be careful you all don't talk yourselves into something here.

M1A Rifleman
11-07-2005, 10:18 AM
A recent lapse in security allowed the master key for my building to be stolen and has made me ponder some things. One thought was in regards to carrying concealed in the builiding. I know carrying on your property is fine, what would the law be on carrying else where in your building?

My building is buy only, so technically the entire building is partially owned by all who reside in it. Would common areas/parking garage all fall into the catagory of 'my property'?

Carrying conceled in a "public" area without the Permit would not be OK. Your own condo is fine. Step out onto the patio or front porch I would interpret as a public place.

artherd
11-07-2005, 11:24 AM
diluted? signifgicant? fractional interest? where does all this come from? unless it comes from a statute, a case, or an opinion of the attorney general, it means nothing.

be careful you all don't talk yourselves into something here.

This bears repeating.

bwiese
11-07-2005, 11:40 AM
I recall this being well-discussed in an older copy of Machtinger's "How to Own a Gun in Calif...", including some case law involving an apt complex manager busted for arming himself in public areas of apt complex. I _think_ he was an owner or partial owner too.

I just don't have this book handy. But these subject were dealt with fairly extensively...

I just don't think you can run around CCWing (unpermitted) inside a large condo complex. I'd like it to not be true, but when you start having a 1/300th interest vs a 1/4 interest in a small condo things get significantly different.


Bill Wiese
San Jose

Anonymous Coward
11-08-2005, 7:26 PM
It should be noted that in many condos (& townhomes in condominium ownership), your patio or deck and even your garage may not really be truly part of your unit, but are considered "exclusive use common areas". This allows HOAs to more specifically regulate behavior in those areas - avoiding junk on decks for appearances' sake, regulating styles of patio furniture, limiting storage of 'stuff' in garages so that you are required to use your garage for parking, requiring you not work on your car in garage, etc.


The patio, deck and garage are not common use areas. If somebody cannot use it without my consent it's not a common area. E.g. if your patio is delimited by a small fence or wall, it's clear that it's not for everybodies use.

Walkways and parking lots are common areas.

This is pretty well defined in the "over the air reception devices rule " http://www.fcc.gov/mb/facts/otard.html where the FCC states where you can put up a satellite dish.

The satellite dish stuff doesn't matter. I quote this to show that the patio and balcony are not common areas:

"Q: Does the rule apply to condominiums or apartment buildings if the antenna is installed so that it hangs over or protrudes beyond the balcony railing or patio wall?

A: No. The rule does not prohibit restrictions on antennas installed beyond the balcony or patio of a condominium or apartment unit if such installation is in, on, or over a common area. An antenna that extends out beyond the balcony or patio is usually considered to be in a common area that is not within the scope of the rule. Therefore, the rule does not apply to a condominium or rental apartment unit unless the antenna is installed wholly within the exclusive use area, such as the balcony or patio."

Can anybody cite case law regarding carrying on rental or condo property? I would have thought a condo owner can carry on the condo's common area.

When I look at the CA PC 12031 it 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.

That could imply if I possess property (even in part) I can carry on it.

rkt88edmo
11-09-2005, 12:15 PM
Does anyone know when Machtinger's book is going to be printed again? Maybe in 2006 to cover the 2005 laws? Have you seen a copy in your local gun shop? I tried to order it off Amazon, but after 6 months of waiting cancelled my order.

delloro
11-09-2005, 6:15 PM
That could imply if I possess property (even in part) I can carry on it.

it does not. 12031(a) prohibits carrying whereas 12031(h) does not restrict having a weapon (neither does 12031(l)).

"Carrying" a weapon and "having" a weapon are not synonymous. Hence, defendant was not exempted from criminal liability by then Pen C § 12031, subd. (f) (now subd. (h)), providing that nothing in the section shall prevent "any person in lawful possession of private property from having a loaded firearm on such property," where the facts showed that defendant, who owned and managed a three-building apartment complex, took a pistol which he ordinarily kept in his apartment outside into his driveway due to his fear that a former employee and two others were tampering with his car and where, as defendant arrived in the driveway, he fired his gun once into a pile of dirt. Accordingly, defendant was properly convicted of violating subdivision (a) of the section, which made it a misdemeanor to carry a loaded firearm on one's person or in a vehicle while in any public place or on any public street. People v Overturf (1976, App Dep't Super Ct) 64 Cal App 3d Supp 1, 134 Cal Rptr 769.

If you are in a public place, it does not matter if you own all of it, or a part of it, the general prohibition is against carrying a loaded weapon.

so, there is the case law you all have been waiting for.

I did not find any cases stating whether or not condominium common areas are public places or not, I will leave that to all the other jurists out there. My best guess is that they are common areas, just like in apartments. The owner of one condo cannot restrict who his neighbors let in. That's a public place in my book.

bwiese
11-09-2005, 6:36 PM
Delloro,

Thank you. That was precisely the example I was thinking of.

Bill Wiese
San Jose

LongBch_SigP226
11-09-2005, 8:12 PM
I live in a condo and I agree with bwiese's post.
You need approval by HoA. After almost having
my condo broken into, having several vehicles broken
into in the parking lot, graffiti paitings, and
trespassing by someone off premise, I thought about
conceal carrying my handgun while going to the dumpster,
checking my mail box, or while walking my dog on the
property. But if I get caught, I'd be in whole lotta
legal problems, specially in this anti-gun state.
It's up to you to make your own decision, but I'll strongly
advise you not to.

Anonymous Coward
11-09-2005, 8:45 PM
it does not. 12031(a) prohibits carrying whereas 12031(h) does not restrict having a weapon (neither does 12031(l)).

"Carrying" a weapon and "having" a weapon are not synonymous. Hence, defendant was not exempted from criminal liability by then Pen C 12031, subd. (f) (now subd. (h)), providing that nothing in the section shall prevent "any person in lawful possession of private property from having a loaded firearm on such property," where the facts showed that defendant, who owned and managed a three-building apartment complex, took a pistol which he ordinarily kept in his apartment outside into his driveway due to his fear that a former employee and two others were tampering with his car and where, as defendant arrived in the driveway, he fired his gun once into a pile of dirt. Accordingly, defendant was properly convicted of violating subdivision (a) of the section, which made it a misdemeanor to carry a loaded firearm on one's person or in a vehicle while in any public place or on any public street. People v Overturf (1976, App Dep't Super Ct) 64 Cal App 3d Supp 1, 134 Cal Rptr 769.

If you are in a public place, it does not matter if you own all of it, or a part of it, the general prohibition is against carrying a loaded weapon.

so, there is the case law you all have been waiting for.

I did not find any cases stating whether or not condominium common areas are public places or not, I will leave that to all the other jurists out there. My best guess is that they are common areas, just like in apartments. The owner of one condo cannot restrict who his neighbors let in. That's a public place in my book.


Yes, I missed that different verbs are used in section (a) and (h). Tricky lawyermakers :(

delloro
11-09-2005, 10:18 PM
Yes, I missed that different verbs are used in section (a) and (h). Tricky lawyermakers :(

you are not alone - somebody in a published opinion tried to argue they were the same, not a bad idea.

marklbucla
11-10-2005, 2:46 PM
This CCW stuff would be regarded similarly to apt complexes. CCW outside your apt and you're illegally carrying.


All I know is that I asked this in my CCW class, and the instructor agreed. My Residence ends at the front door of my Apartment.

As a side note, I have questioned the book How to Own a Gun and Stay out of Jail, as it had some discrepancies with the CA DOJ book. IIRC, How to Own a Gun said that it's illegal to have a firearm within 1000 yards (or feet?) within school grounds but made the exception for only K-12s. The CA DOJ book says that it's okay within a few exceptions.

Anonymous Coward
11-10-2005, 6:55 PM
you are not alone - somebody in a published opinion tried to argue they were the same, not a bad idea.

The funny thing is PC 12024 says:
"Every person having upon him or her any deadly weapon, with intent to assault another, is guilty of a misdemeanor."

If having means "keeping in the apartment" as in the decision above then you can't have something on your person. I guess you could argue that simply "having" and "having upon you" is different, but I think that's silly because the lawmakers could have used carry in PC 12024. :confused:

Anyway, what I'm wondering is a business like a restaurant or a store a public place? What about a front yard if you own a house?

delloro
11-11-2005, 8:43 AM
"having upon him" is more like carrying than having. laws are not interpreted so as to render language irrelevent - thus, "upon him" must mean something. and that's the law.

and "assault" means something too - a bad thing.

restaurants and stores - if you own them and if you have a real right to exclude people, I would say that generally, that's not a "public place."

your front yard, I would say that's not a public place either, so no CCW violation. but you can still get hit with 12024 or disturbing the peace or brandishing or whatever else, if the facts and circumstances permit.