Legal eagles... questions on CCW without a permit on my private HOA land

[Cokebottle]

It is possible for a CID to remain essentially private to the outside world. What would have to happen would be for the land to NOT have any easements for public safety or public utility access recorded in the title to that property. The CC&R's would also have to not have any easement language for that either.

A lot of private property areas have utility access easements.
With electrical service feeds more frequently coming in from underground, there are often specific easements running from the fence to the meter (which is utility-owned up to the meter itself).
Nothing new either... my parents' place, built in the early 50s, had a utility pole in the corner of the fenced yard and Edison never asked permission to access the pole.

[CSDGuy]

A lot of private property areas have utility access easements.
With electrical service feeds more frequently coming in from underground, there are often specific easements running from the fence to the meter (which is utility-owned up to the meter itself).
Nothing new either... my parents' place, built in the early 50s, had a utility pole in the corner of the fenced yard and Edison never asked permission to access the pole.

Yep. If the property had NO public utility services... running in, on, or over the property... Many properties do have limited access easements for the limited purpose of reading the meters or servicing/repairing the utility "side" of the service. That doesn't authorize unfettered access beyond what's in the easement though. I have to allow public utility personnel access to my electrical and gas meters... but I do NOT have to allow them access to my back yard, which is NOT where those meters are.

[Saym14]

yes - even if they have an easement they need to notify you before they go in your private space, so you control the expectation of provacy. as long as the HOA board agrees ?

[BillCA]

A little quibble about terminology here.

My HOA controls the property, including the CC&R's, streets, exteriors, roofs, pool/rec-room, sprinklers, etc. It's not gated, but access is limited by no trespassing signs, permit parking and fencing or walls around most of the property. Each unit has a private back yard (some are very small too), but no front yard.

Areas that any resident may use and enjoy are called common areas which include the streets, lawns, walkways, pool and rec-room areas. Control of these areas is under the HOA board of directors and designated property managment. These are not "public" areas. The distinction may seem minor, but it is important. "Public" means open to the public at large (anybody). Common areas are open only to residents, their guests and those with lawful business on the property (e.g. utilities, trash collectors, a plumber, the Dish-TV contractor, etc.).

It is usually doubtful that any HOA will give permission for any resident(s) to carry (LOC or CCW) on the property due to liability issues. Should one of their residents unlawfully shoot someone, the HOA would be named in the lawsuit. Most simply don't have the funds to defend against such an event.

Actually LEO's do have legal access to most if not all HOA covered areas. In fact most have access keys or even remote entry controls to these type housing complexes.

Most towns have ordinances mandating LEO / fire access. Usually having common transmitter codes for these type of areas.

I don't know where you live, but many gated apartment complexes and HOA's here don't have a common access method. Some of the newer ones do and the large apartment complex nearby has a push-button box where PD/FD can enter a code to open the gate. These are apparently registered with the city as I hear the dispatchers advise responders of the access codes once in a while. Many others require someone to open the gate for the PD/FD.

Even if the HOA grants permission, in writing, everyone has to be very careful about running afoul of being termed "security" or accepting any form of compensation for any kind of security work. If that happens, then you're likely to see charges filed for unlicensed security personnel and/or operating an unlicesened security agency.

[the_quark]

I would argue that it is logical that, if the HOA Board explicitly grants you permission, you'd have the permission of the "property owner" and it would be fine.

However, I don't think the law really considered this situation. If there's not on-point case precedent of this having happened in the past (guy gets permission of board; guy carries; guy gets arrested and charged for carrying; guy gets off because he had the permission of the HOA), then you're stepping into deep and muddy waters where you have to try to convince the judge that you were in the right.

Also, dunno what your HOA is like, but if things ever get contentious on the board, you've just given other board members a big stick to hit you with (possibly including calling the cops on you every time they see you walking around in common areas).

Dumb question: Have you considered applying for a CCW? Depending where you live it may not be that hard to get. The first time I met Paul and Ed from the NRA was when they were doing a reach-out to the Calguns community, and they noted how often they hear people complain about not being able to get a CCW who've never applied. A lot of places, it's easier than you think.

[Saym14]

Also, dunno what your HOA is like, but if things ever get contentious on the board, you've just given other board members a big stick to hit you with (possibly including calling the cops on you every time they see you walking around in common areas).

Dumb question: Have you considered applying for a CCW? Depending where you live it may not be that hard to get. The first time I met Paul and Ed from the NRA was when they were doing a reach-out to the Calguns community, and they noted how often they hear people complain about not being able to get a CCW who've never applied. A lot of places, it's easier than you think.

LA county sheriff serves my CIty - no way a CCW would ever happen.

[GrizzlyGuy]

Read this wiki article that Gene wrote: Unlicensed Concealed Carry (link points into the document at the relevant section for what you are asking, scroll up to read more)

[Saym14]

Read this wiki article that Gene wrote: Unlicensed Concealed Carry (link points into the document at the relevant section for what you are asking, scroll up to read more)

[the_quark]

if this was a place of business, a corporation and I owned 1/50th of the corporation would I not be entitled to carry in the business?

12026 says:

Section 12025 shall not apply to or affect any citizen...who carries, either openly or concealed, anywhere within the citizen's...place of residence, place of business, or onprivate property owned or lawfully possessed by the citizen or legalresident any pistol, revolver, or other firearm capable of beingconcealed upon the person.

I would be very surprised if a 1/50 share is sufficient to "own" or "lawfully possess" the property. Certainly it would be nonsensical if you could buy one share of Oracle and that would let you carry concealed at their headquarters whether they wanted you to, or not.

My guess (and, of course, IANAL) is that you'd have to hang this on "lawfully possessed by", which would mean the HOA would have to pass a resolution authorizing. No individual owns it, but the HOA is empowered to make decisions about it, to "lawfully possess" it.

Frankly, if you want to do it right, I'd talk to one of the southern California gun lawyers (Chuck Michel or Bruce Colodny) and get an actual opinion. Otherwise you're just hoping it'll be OK.

[wheels]

A carefully worded google turned up this thread - nothing definitive and not exactly on point, but the last entry was someone posing a similar query to DOJ and offering to post the response.

It would be most excellent to see an HOA specifically authorize HOA members to CCW on private HOA property in the CCR's. I wonder if the HOA's liability insurance would have an $opinion$.

[Librarian]

For businesses, Machtinger (How to own a gun in California & stay out of jail) says "you are an owner if you have a proprietary, possessory or substantial ownership in the business. ... 'possessory' interest means you have the right to exclude other people from the workplace and the right to control activities at the workplace."

He doesn't apply that to residences; it would not be a stretch to do that, I think, and if so, your undivided 1/50 interest in the common areas would not qualify as 'possessory' - you personally have no right to exclude the other 49 property owners from using the common areas.

Had we not had Overturf and Theseus, this would be a whole lot clearer.

Note that Machtinger later says, in that same chapter, "The concealed gun law and the loaded gun law were intended to prevent citizens from having easy access to loaded guns in places where exceptions do not apply..."

[Decoligny]

I have read that you cannot CCW without a permit in your front yard unless its fenced as there is no expectation of privacy.

I live in a private gated HOA with no tresspassing / soliciting posted. the streets are private. there is 5 acres of private open space wild oaks,walnuts,brush etc. all fenced and gated. as a homeowner I own 1/50th of all the land and streets. questions

i do not have a permit to CCW . can I ccw legally in
1) my front yard (not fenced) ?
2) the private streets
3) the private open spaces

1. Yes. The exception in PC 12025 does indeed allow you to CCW on your front yard, even without a fence. The sticker is, you can only CCW unloaded. The case law that states that your private property that is accessible to the public is a "public area" deals with PC 12031 (carrying a loaded firearm) which says you can't have a loaded firearm in any "public area" of an incorporated city, or a prohibited area of unincorporated territory. If your neighbor can physically walk onto your front yard, you can't have a loaded gun.

2. No. The private streets are not considered "private" as you really cannot control who accesses them. If someone you do not personally know is driving down the street (guest of a neighbor), do you have the authority to tell them to get off your street or be charged with tresspass? I don't think so.

3. No. See #2 and change "streets" to "open spaces".