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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 11-10-2010, 9:48 AM
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Default Can a Landlord/Apartment complex ban firearms?

Okay, so on another forum I frequent the topic of home invasions came up, and how you would be ready for it. One of the posters said that his complex bans any firearms. My first thought was that there is no way that is a legal "ban" for your home, even if you do rent it from someone else.

Not sure exactly where this poster was located, not in California though. Somewhere on the East Coast I believe.

Unless he lives in college dorms or something and just called them his "complex".

So, is this completely illegal? Or are there ways that a landlord might be able to legally do this?
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Old 11-10-2010, 9:52 AM
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I know that you can't have firearms in a college dorm, but if I was in an apartment I wouldn't care what my landlord thought, my life comes first, he can mind his own business. If there happens to be a defensive shootout then being kicked out of the apartment for violating the ban would be the last of my worries.

Not sure if it would be legal for him to ban anyways. I am sure that even if there is legal precendent supporting such a ban, that a challenge with the new definitions and appliacations of the Second Amendment would easily over rule such a retarded ban.
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Old 11-10-2010, 10:01 AM
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Not sure if it would be legal for him to ban anyways. I am sure that even if there is legal precendent supporting such a ban, that a challenge with the new definitions and appliacations of the Second Amendment would easily over rule such a retarded ban.
That's what I was thinking, that if it was sort of a legal gray area that they got away with a few years ago, we now have Heller and McDonald to smack that down?

Another poster chimed in that he had lived in an apartment complex with a firearm ban as well. So this may actually be more common than I know (I've never lived in an apartment). If it is common for landlords to do, I'd think that's a case we need to get on right away. Because think about the people who are kind of on the fence about bringing dad's old shotgun to their new apartment, for fear of getting kicked out, so they all just blindly follow the "ban".

So, yeah, if it's illegal I'd love to see landlords get smacked down in court, and if it's currently 'legal' I'd love to see a constitutional challenge to that.
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Old 11-10-2010, 10:03 AM
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NO. SCOUTS made it crystal clear that the 2A is for protection in the home. If this is on campus housing it could make for a great test case.
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Old 11-10-2010, 10:06 AM
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NO. SCOUTS made it crystal clear that the 2A is for protection in the home.
All this time I thought they said I was just suppose to be prepared.

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Old 11-10-2010, 10:11 AM
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Originally Posted by glockman19 View Post
NO. SCOUTS made it crystal clear that the 2A is for protection in the home. If this is on campus housing it could make for a great test case.
I suspect other cases will laterally attack this via 'sensitive places' language long before anyone wants to litigate that part of PC 626.9 head-on. In fact, it started with the San Francisco Housing Authority settlement.
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Old 11-10-2010, 10:25 AM
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I actually brought this up when the whole SF Housing Authority settlement came up. I believe the difference was in that SFHA is a public entity while the example in this thread is a private individual/enterprise.

1) It's a lot easier to say that a public entity cannot ban the legal private ownership of firearms (which is why the SFHA settled).

2) it becomes a lot harder when the leasor (vs. leasee) is a private enterprise.
- landlords can set rent at whatever they choose. If they want to say rent is $10K/mo, they don't have to take the $5 you may be willing to pay
- Landlords should be allowed to pick who I want to rent my property to. It's their property.
- Landlords can restrict ownership of pets. If I was a landlord, I expect to rent to humans and not a zoo.
- As a correlary, if I had a private business, I could say "no shoes, no shirt, no business." I could also prohibit the carrying of guns on the premises. It's my perogative as to who I want to do business with.

3) Most rental contracts I've seen from friends say that illegal activies (including gun possession) is prohibited. This merely gives the landlord the ability kick out problem tenants by stating that they were in breach of contract if something bad goes down (that could potentially risk their property -- example: drug dealing can cause the confiscation of the house even if they are rentors)

While I may not agree with a prohibition of the legal possession of guns inside a property I would rent to others, if I was a landlord I a) would prohibit the installation of safes which may damage MY property and
b) I wouldn't stand against a landlord who felt his property should be used in a different fashion. After all, it's his property so his/her rights should overrule any tenants.

I'm not arguing that a person should have the right to defend themselves in their home. That is a fundamental right of one public citizen. However, I believe a landlord is also an individual. They should have a right to say what can and cannot be done with their personal property so you cannot say that one private citizen's rights trump anothers. After all, a rentor does not have a "RIGHT" to rent any given landlord's property... they can always go rent somewhere else.

If you guys feel otherwise, hell, we should all just join the Rent is Too Damn High Party.
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  #8  
Old 11-10-2010, 10:27 AM
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People, this has nothing to do with the SCOTUS or the government. It's a private, citizen-to-citizen contract. I think contract law is the only stuff that applies as far as CA PC. That being said, I've never heard a solid answer on if a landlord can force you to give up a right to live in his complex. The out being, you can always just not sign the contract.
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Old 11-10-2010, 11:01 AM
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I believe a fundamental civil right cannot be negated by civil contract. Example: Suppose a rental agreement said that the renter cannot vote in elections --- obviously not enforceable and certainly actionable.

Justice Scalia, in writing for the majority in Heller, stated that the R2KABA existed before the Constitution; and the 2A says it may not be infringed.

It is my interpretation that the 2A is one of those inalienable rights that the Declaration of Independence cites as ...Life, Liberty, and the Pursuit of Happiness. Those words were borrowed from a treatise by Locke who originally wrote, "Life , Liberty, and Property.

There needs to be a test case -- but, I believe the 2A is one of those fundamental rights that cannot be negated by civil contract.
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Old 11-10-2010, 11:09 AM
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Can landlords, being private entities, ban black people as well ?
Wouldn't it be a violation of one's civil rights just as much as banning guns would be ?
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Old 11-10-2010, 11:15 AM
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Originally Posted by boxbro View Post
Can landlords, being private entities, ban black people as well ?
Wouldn't it be a violation of one's civil rights just as much as banning guns would be ?
There are protected classes (e.g. race/ethnicity), and being a gun-owner is not one of them.
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Old 11-10-2010, 11:25 AM
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I suppose a landlord could write a gun ban into the lease. Whether that would stand up to a legal challenge is another matter. I don't think we've ever seen this situation played out in the courts yet.
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Old 11-10-2010, 11:25 AM
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Quote:
Originally Posted by boxbro View Post
Can landlords, being private entities, ban black people as well ?
Wouldn't it be a violation of one's civil rights just as much as banning guns would be ?
As a Land lord my self I can tell you I can do what ever I want in the renting process. You are not forced to rent from me nor am I forced to rent to you. That being said on a month to month rental agreement I can ask you to leave for any reason at any time. You in turn can leave for any reason at any time.

Now if I fail to rent to you because of your race, religion, etc you can sue me in civil court....hell you can sue me even if I have a legitimate reason such as bad credit, or prior evictions etc.

Once in the dwelling then there are certain things I can do and can't and vis versa.

As said here already the 2A is protection from the government not other private citizens or private entities.
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Old 11-10-2010, 11:32 AM
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Can landlords, being private entities, ban black people as well?
Prior to 1964, absolutely, and it happened all the time. Then, a liberal's law was passed to make it illegal, and...it still happens all the time. The proper conclusion to draw from this is left as an exercise to the reader.
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Old 11-10-2010, 11:39 AM
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There are protected classes (e.g. race/ethnicity), and being a gun-owner is not one of them.
+1
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Old 11-10-2010, 11:43 AM
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When I first moved to Sacramento, I lived in an off-campus privately run complex that banned firearms. It was in the contract along with illegal drugs, fireworks, and explosives... I just "assumed" they meant illegal firearms since it was grouped in with a bunch of other illegal items, and kept a firearm anyway.

I figured, what they didn't know couldn't hurt 'em... unless they unlawfully entered my apartment and I was in fear for my life.

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Old 11-10-2010, 11:43 AM
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This is something I have been looking at here. The military dictates that firearms must be unloaded, locked, and stored seperately in different locations. (This is a Navy Policy). Now here is where it get's fun.

The navy contracts out private housing, which is on federal property, and some of it is on base. So now the navy doesn't own the houses, but owns the land -- but dictates what you can do inside of it.

Hawaii landlord tenant code says that rules must promote the safety of the resident; rules are also suppose to be designed to protect the property and the landlords interest. Whether or not the landlord could ban the possesion of a firearm is very debateable imo, do they have a true interest in ensuring that your firearm doesn't damage their house?

We would have to look at it similar to telling someone they can't have a cross, a bible, or an american flag in your house. You don't have to have any of those to practice your religion, and it's not discriminating against your person. The government has stood behind American's displaying the flag as well, even in landlord cases.

In my situtation I really question whether the government can restrict the use of operational arms within the home, on federal property. I have been told my housing is "on base" when we are really outside of the secure area to what I consider "base". I feel that I am just on federal property.

No one really is interested in working this that I can see though!
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Old 11-10-2010, 11:44 AM
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I think it gets more complicated in that once you are renting, it's not just a piece of property on loan to you, it's your home and a whole other slew of laws about what you can do in your domicile come into effect.
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Old 11-10-2010, 11:57 AM
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Private property is private, the domain is the home owners not the home leaser's, although such restrictions should be listed in the lease agreement. Just find a calgunner to rent from and you/your friend should be okay.
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Old 11-10-2010, 12:06 PM
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There are entities such as housing authorities and such so there is a third party overlooking these contracts. I believe they have the power to invalidate arbitrary rules in housing contracts.

Can your landlord ban alcoholic beverages in your apartment? Can they ban the carrying of groceries on the premises on Tuesdays?

I'm sure people have tried and there is case law on such. Just takes someone to look it up.
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Old 11-10-2010, 12:12 PM
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Quote:
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Private property is private, the domain is the home owners not the home leaser's, although such restrictions should be listed in the lease agreement. Just find a calgunner to rent from and you/your friend should be okay.
You are wrong about this. When you rent property it becomes 'your' property for all intents and purposes. If the homeowner enters the premises without permission, is asked to leave and does not - then he can be arrested for trespassing. 'Premises' includes land on the property.

I just went through this awhile ago. I lived in the bottom apartment of a house (not a complex) and the original landlord put the house up for sale. He put a sign out front (on the property) and we had an endless stream of people snooping around the property. So I asked him to take the sign down. He didn't Then I found out that if I don't want the sign there I don't have to let him put it there. I, afterall, am renting the property rights for the time being. It is my domicile. So I took it down myself and told him how the law works. We had a better understanding from there on out.
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Old 11-10-2010, 12:17 PM
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Things like this really depend on your state laws.
Hawaii law authorizes political signs.
Federal Law protects flags being displayed

Landlord Tenant codes for your state aid in dictating what the landlord is allowed to do, so the landlords have rules to follow.
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Old 11-10-2010, 1:37 PM
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FWIW, assuming you're already renting the property, you can be evicted for the illegal use, manufacture, causing to be manufactured, importation, possession, possession for sale, sale, furnishing, or giving away of any of the following: (1) A firearm, as defined in subdivision (b) of Section 12001 of the Penal code. (2) Any ammunition, as defined in paragraph (2) of subdivision (b) of Section 12316 or subdivisions (a) and (b) of Section 12323 of the Penal code. (3) Any assault weapon, as defined in Section 12276, 12276.1, or 12276.5 of the Penal code. (4) Any .50 BMG rifle, as defined in Section 12278 of the Penal code. (5) Any tear gas weapon, as defined in Section 12402 of the Penal code.
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Old 11-10-2010, 1:52 PM
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You are wrong about this. When you rent property it becomes 'your' property for all intents and purposes. If the homeowner enters the premises without permission, is asked to leave and does not - then he can be arrested for trespassing. 'Premises' includes land on the property.
The above is incorrect. The property becomes your property within the limits of the rental agreement (lease) that you signed when you rented the property. Regarding "for sale" signs and the like, leases often contain a clause specifying that the landlord can post such signs, and if you agreed to it at sign-up, you are stuck with that.

On the other hand, contracts cannot supersede the law of the land. If your rental contract specifies, for example, that you cannot receive a subscription to a certain newspaper, that is a violation of your constitutional rights and would be rejected in court, asssuming it ever got there (could happen, if it was the basis for an eviction and you chose to fight it). I suppose firearms ownership by non-prohibited persons in a rental property might fall in this category.

It can get messy, though, as recently discussed in another thread. Landlords have a right (for that matter, an obligation) to assure that their property is safe for everyone; neighbors, tenants, the general public. Storage of ammunition might count as "hazardous materials," which a landlord can legitimately prohibit.

Bottom line, it might take a protracted court case to settle it, and most renters don't have the money for that. I guess Calguns might take it on, but personally, I'd rather have them work on CCW issues, assault weapons bans, large capacity magazine bans, etc. etc. If you'd rather they take on renter's rights instead, chime right in.
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Old 11-10-2010, 2:10 PM
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A land lord or property owner can ban oxygen if they want to. You are not required to disclose that you breath it though. If he finds out then you are in violation and subject to eviction. If you do not agree with the terms of a lease then do not live there or do not disclose information that would put you in violation of the lease.
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Old 11-10-2010, 8:11 PM
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A land lord or property owner can ban oxygen if they want to. You are not required to disclose that you breath it though. If he finds out then you are in violation and subject to eviction. If you do not agree with the terms of a lease then do not live there or do not disclose information that would put you in violation of the lease.
Really?!!! Please do not ask me what I really think.
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Old 11-10-2010, 11:37 PM
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In general a tenant's right to the property he rents is subject to the terms of the lease, to the extent they are valid and enforceable under the law of the place where the property is located. In some states, there may be statutory or case law prohibiting "no guns" clauses; but absent such laws, a "no guns" clause would be valid and enforceable.

If it is valid and enforceable, the tenant is risking eviction if the landlord finds out. It's probably unlikely that he will find out, but unlikely things happen from time to time. How lucky does the tenant feel?

Note that the Constitution does not regulate private conduct. It regulates government conduct. And it's illegal to refuse to rent to someone of a particular race or religion only because there are specific statutes prohibiting discrimination on such grounds. But AFAIK, there are no laws prohibiting a landlord from discriminating against someone because he owns a gun.
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Old 11-10-2010, 11:39 PM
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Quote:
Originally Posted by edwardm View Post
I suspect other cases will laterally attack this via 'sensitive places' language long before anyone wants to litigate that part of PC 626.9 head-on. In fact, it started with the San Francisco Housing Authority settlement.
imagine that....San Francisco


When you rent from someone you're entering a contract to stay within their property...if you don't like the "no guns" rule, you don't have to enter that contract. I'm assuming that yes, they absolutely could do this because it is THEIR property. If you want to rent it, you have to abide by their rules. When you sign the lease, you're stating that you know those rules and agree to them. It would be hard to litigate against the rental when you signed something saying you're going to abide by their terms and their terms say no guns....
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Old 11-11-2010, 12:07 AM
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I personally have never seen a lease/rental agreement which banned guns. I have seen specific language in agreements which prohibited guns in the "common areas" but that's all.

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Old 11-11-2010, 12:24 AM
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When my daughter transferred to a four year college a couple of years ago I helped her find a place to rent. When we were reviewing the lease agreement with the landlord I noticed that the standard form he was using had a no firearms clause. I mentioned that my daughter wanted to bring her guns and if we could delete that part of the agreement. The landlord looked it over, lined out the clause and wrote “if you see any ‘yotes blast ‘em”.
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Old 11-11-2010, 12:42 AM
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I have a friend in Texas (of all places) who has this exact issue. What makes the situation fuzzy is that the apartments she lives in are owned by her school, and are practically adjacent to the campus (not quite, but almost). However they aren't technically part of the campus (nor are they a dorm), and they are not operated by the school (there is an outside management company who presumably wrote the lease).

As if that weren't complicated enough, there have been several (read: more than 2 or 3) recent home invasions in the complex next door... all involving residents who were home at the time and were held at gunpoint by multiple armed men

Poor gal wants (and I would say badly needs) a firearm, but she's afraid of being evicted. She's actually afraid to even answer the door for anyone at this point. It is not a good situation at all
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Old 11-11-2010, 1:03 AM
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Rental contracts can have all sorts of things in them, but that doesn't make them enforceable.

When you lease a property, you are the lawful possessor if the property, subject to the valid conditions of lease. I don't believe, however, that a flat ban on guns is enforceable in a lease contract. The landlord may reasonably not allow pets, or smoking in the property, may even have a line prohibiting entering or exiting your home during certain hours of the day/night and could conceivably get away with it, but I don't see how they can get away with prohibition of firearms without opening themselves up to liability.
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Old 11-11-2010, 2:58 AM
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So what do you guys think about the government banning operational firearms in the home of service members.
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Old 11-11-2010, 8:05 AM
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I believe the lease agreements ya'll talking about only ban possession of firearms in common areas. I haven't seen or heard of a lease that bans firearms inside one's residence, with the exception of university/HUD housing.
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Old 11-11-2010, 8:21 AM
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Quote:
Originally Posted by PaperPuncher View Post
A land lord or property owner can ban oxygen if they want to. You are not required to disclose that you breath it though. If he finds out then you are in violation and subject to eviction. If you do not agree with the terms of a lease then do not live there or do not disclose information that would put you in violation of the lease.
No a landlord can't ban oxygen. The property they rent must be habitable. A place without oxygen is not habitable.
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  #36  
Old 11-11-2010, 8:31 AM
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Quote:
Originally Posted by boxbro View Post
Can landlords, being private entities, ban black people as well ?
Wouldn't it be a violation of one's civil rights just as much as banning guns would be ?
Sadly, I am certain there are a few landlords that have tried.

Racism is a sin that leads to a whole host of sins. Worse yet, most of the sins it leads to are encouraged by some of the powers that be.
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Old 11-11-2010, 8:49 AM
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Quote:
Originally Posted by boxbro View Post
Can landlords, being private entities, ban black people as well ?
Wouldn't it be a violation of one's civil rights just as much as banning guns would be ?
Unless the landlord told you it's because you were black, or it's a large complex with absolutely no black tenants, good luck proving that. And even if you did, you'd what, get the right to move in? Yeah, moving in with a pissed off landlord, that'll work out well

I actually have come across a few apartment complexes with the population all primarily being one specific ethnicity and all of a sudden there are no units available(even if you can see 5 clearly unoccupied and they have a "now leasing" sign out front), or all of a sudden the rent they ask for is through the roof. Yeah, I could probably fight it but what would I get out of it? I'd move into a complex with a landlord that hates me.

It'd be like winning a case for being wrongfully fired and the award is getting your job back with the same boss.
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Old 11-11-2010, 8:53 AM
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A landlord made me fill out a lease agreement. I would have no such assault rifles in a condo I rented. I asked hem what are assault rifles to you he said AK-47, Ar 15 ,M16 . I replayed oooo Yea Don't own any .
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Old 11-11-2010, 8:57 AM
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Wouldn't it be a good thing if one of our resident attornies weighed in on this subject?
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Old 11-11-2010, 9:05 AM
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Quote:
Originally Posted by Bruce View Post
Wouldn't it be a good thing if one of our resident attornies weighed in on this subject?
Well, I am a lawyer. See post 28.
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