Tennessee Attorney General Says Landlords Can Ban Tenants' Guns

[GLOCKMEISTER]

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

PO BOX 20207

NASHVILLE, TENNESSEE 37202

October 26, 2009

Opinion No. 09-170

Firearms, Vehicle Towing, Guests, and Security Deposits on Leased Property

QUESTIONS

1. Can a landlord prohibit tenants who possess valid handgun carry permits from

possessing firearms in the apartment if the tenant has a permit issued by the State?

2. If there is a clause in an apartment lease that prohibits the possession of firearms

within the leased space, is a landlord also required to post signs that satisfy the requirement of

Tenn. Code Ann. § 39-17-1359 to effectively prohibit such possession on property owned by the

landlord?

3. If the landlord chooses to post signs prohibiting firearms on the property pursuant to

Tenn. Code Ann. § 39-17-1359, is the landlord required to post a sign at each individual

apartment or common area?

4. Does Tenn. Code Ann. § 66-28-518( require landlords to use specific language in

restricted parking signs to be able to immediately tow unauthorized vehicles?

5. May a landlord avoid both the notice and signage requirement set forth in Tenn. Code

Ann. § 66-28-518 by using a clause in a lease that authorizes the landlord to immediately tow an

unauthorized vehicle that is parked on the property?

6. Does a landlord have the authority to prohibit a person from entering the property to

visit a tenant within the confines of the leased space?

7. Does the failure of a landlord to list the estimated dollar cost of any repairs necessary

prior to the signature of both parties on the damage listing preclude the landlord from collecting

repair costs from the tenant pursuant to Tenn. Code Ann. § 66-28-301?

OPINIONS

1. A landlord can prohibit tenants, including those who hold handgun carry permits,

from possessing firearms within the leased premises. Such a prohibition may be imposed

through a clause in the lease, or, in counties where the Uniform Residential Landlord and Tenant

Act, Tenn. Code Ann. §§ 66-28-101 to 66-28-501, is in effect, such a prohibition may be

imposed by adopting a rule that satisfies the requirements of Tenn. Code Ann. § 68-28-402.

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2. A landlord who prohibits firearms through a lease or property rule would not be

required to post signs that satisfy the requirements set forth in Tenn. Code Ann. § 39-17-1359.

However, if the landlord does not post such signs, persons who violate the prohibition would not

be subject to criminal prosecution for violating Tenn. Code Ann. § 39-17-1359.

3. Property owners who elect to posts signs that give notice that the possession of

firearms is prohibited on their property must post the signs at all public entrances to the property

or area where firearms are prohibited. The location where these signs must be erected to satisfy

the requirements set forth in Tenn. Code Ann. § 39-17-1359 would depend on the layout of the

property in question.

4. No particular wording is required by Tenn. Code Ann. § 66-28-518( to appear in

the landlord’s posted signs announcing the landlord’s parking rules. Any sign giving reasonable

notice of the landlord’s parking rules will suffice.

5. Tenn. Code Ann. § 66-28-201(a) prohibits a landlord from using a clause in a lease to

circumvent the requirement that signs be posted in parking areas before a landlord may

immediately tow vehicles that are parked in violation of the landlord’s parking policy. Tenn.

Code Ann. § 66-28-518.

6. A landlord may prohibit a guest of a tenant from coming onto the property if there is

a clause in the lease authorizing the landlord to take such action.

7. Under Tenn. Code Ann. § 66-28-301( a landlord cannot retain a security deposit if

the landlord fails to give the tenant a written estimate of the cost of repairs. However, the tenant

would still be liable for the cost of any damages to the property. Tenn. Code Ann. § 66-28-

301(g).

ANALYSIS

1. You ask if a landlord may prohibit tenants, including holders of handgun carry

permits, from possessing firearms on the leasehold. The relationship between a landlord and

tenant in Tennessee is governed by the Uniform Residential Landlord and Tenant Act (“the

Actâ€) in counties where it applies,1 Tenn. Code Ann. §§ 66-28-101 to 66-28-521, and by

general principles of contract and real property law. Planters Gin Co. v. Fed. Compress &

Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002); Ryan v. Stanger Inv. Co., 620 S.W.2d

505, 508 (Tenn. Ct. App. 1981).

Under both case law and the Act, a landlord and tenant are free to establish terms

governing the use of the property. Tenn. Code Ann. § 66-28-201(a); Planters Gin Co. v. Fed.

1 The Uniform Residential Landlord and Tenant Act, Tenn. Code Ann. §§ 66-28-101 to 66-28-521, is only

applicable to counties having a population of more than 68,000 according to the 1970 federal census or any

subsequent federal census. Tenn. Code Ann. § 66-28-102(a). Prior to October 1, 2008, the Act was only applicable

in certain counties that fell within specific population brackets. In these counties where the Act first became

applicable on October 1, 2008, it applies to rental agreements entered into, extended, or renewed after that date.

2008 Pub. Acts. Ch. 1067, § 4.

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Compress & Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002). A landlord and a tenant

may, therefore, mutually agree through a lease to prohibit the possession of firearms on the

premises. Tenn. Code Ann. § 66-28-201(a).

Under the Act, a landlord may also prohibit firearms by adopting a rule that satisfies the

requirements of Tenn. Code Ann. § 66-28-402(a). It states:

A landlord, from time to time, may adopt rules or regulations, however

described, concerning the tenant’s use and occupancy of the premises. It

is enforceable against the tenant only if: (1) Its purpose is to promote the

convenience, safety, or welfare of the tenants in the premises, preserve the

landlord’s property from abusive use, or make a fair distribution of the

services and facilities held out for the tenants generally; (2) It is

reasonably related to the purpose for which it is adopted; (3) It applies to

all tenants in the premises; (4) It is sufficiently explicit in its prohibition,

direction, or limitation of the tenant’s conduct to fairly inform the tenant

of what the tenant must or must not do to comply; (5) It is not for the

purpose of evading the obligations of the landlord; and (6) The tenant has

notice of it at the time the tenant enters into the rental agreement.

If the landlord complies with the requirements of Tenn. Code Ann. § 66-28-402(a), and that rule

is in effect at the time the lease is executed, then the rule will be enforceable.2

You also ask if a tenant who holds a valid handgun carry permit could possess a firearm

on property notwithstanding a clause prohibiting the possession of firearms on the leasehold.

Handgun carry permits authorize holders to carry a firearm in public for the purpose of going

armed. Tenn. Code Ann. § 39-17-1308. Under the general principles of contract law, a tenant

can contractually agree to give up rights as long as the waiver is not unconscionable, Tenn. Code

Ann. § 66-28-204, or in violation of a statute. See, e.g. Freeman v. Thompson, 600 S.W.2d 234,

236 (Tenn. Ct. App. 1979). A lease provision forbidding the possession of firearms on the

leased premises is neither.

2. You ask whether landlords may prohibit the possession of firearms on their properties

without having to post a notice as specified in Tenn. Code Ann. § 39-17-1359. That statute

authorizes property owners to prohibit weapons on their property by prominently posting notices

at all public entrances to the property. Tenn. Code Ann. § 39-17-1359(a). It is a misdemeanor

offense to carry a firearm on property where such signs are posted. Tenn. Code Ann. §§ 39-17-

1358( and 39-17-1359.

As discussed above, landlords may prohibit firearms on leased premises through a clause

in the lease or by enacting a rule before the execution of the lease. Such a clause or rule would

impose a contractual obligation upon the tenant, and a violation of that obligation would

constitute a breach of the lease. If such a breach occurred, the landlord could resort to civil

2 Tenn. Code Ann. § 66-28-402(

also allows a landlord to adopt a rule or regulation after execution of the rental

agreement “if reasonable notice of its adoption is given to the tenant and it does not work a substantial modification

to the rental agreement.â€

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remedies to enforce the terms of the lease. Tenn. Code Ann. § 66-28-505. By posting the signs

as set forth in Tenn. Code Ann. § 39-17-1359, a landlord could also subject a tenant to criminal

penalties.

3. You have asked if a landlord who elects to posts signs pursuant to Tenn. Code Ann.

§ 39-17-1359 would be required to post a sign on the door of each living unit. To prohibit

firearms under Tenn. Code Ann. § 39-17-1359(a), a property owner must post signs “in

prominent locations, including all entrances primarily used by persons entering the building,

portion of the building or buildings where weapon possession is prohibited.†The sign must be

“plainly visible to the average person entering the building, premises, or property.†Id.

Under the rules of statutory construction, if the language is plain and unambiguous, the

plain meaning of the statute should be applied. Brown v. Erachem Comilog, Inc., 231 S.W.3d

918 (Tenn. 2007). Tenn. Code Ann. § 39-17-1359(a) unambiguously states that the signs must

be plainly visible at each public entrance to the area where firearms are prohibited. The exact

location where signs would be required to be posted would depend on the facts and

circumstances of each case.

4. You ask whether Tenn. Code Ann. § 66-28-518( requires that signs posted to give

notice of a landlord’s parking rules must contain a particular form of words in order to enable a

landlord to immediately tow vehicles parked in violation of the rules. Tenn. Code Ann. § 66-28-

518( states:

A landlord may have a tenant’s, occupant’s, tenant’s guest’s, or

trespasser’s vehicle immediately towed or otherwise removed from such

real property, without notice, if and when such person fails to comply with

the landlord’s permit parking policy as defined in the landlord’s posted

signage.

This statute does not prescribe any specific language that a landlord should use in posting a

permit parking policy sign. Id. You also asked if a sign that says “TENANT PARKING

ONLY†would satisfy the legislature’s intent and allow a landlord to tow a non-tenant’s vehicle

parked on the premises. Under the rules of statutory construction, statutes should be interpreted

so as to give effect to the intent of the legislature. State v. Hannah, 259 S.W.3d 716 (Tenn.

2008). Under this statute, the legislature requires landlords to give automobile owners notice,

through a posted parking permit policy, where they may legally park on the property before the

vehicle can be towed. A “TENANT PARKING ONLY†sign would give sufficient notice that

parking by non-tenants is unauthorized. Tenn. Code Ann. § 66-28-518( does not explicitly

require that the posted parking permit policy include notice that unauthorized automobiles are

subject to immediate towing.

5. You have asked if the Uniform Residential Landlord and Tenant Act permits a

landlord to immediately tow unauthorized vehicles where the signs required under Tenn. Code

Ann. § 66-28-518( have not been posted, if the facility’s parking policy is set forth within the

lease.

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Tenn. Code Ann. § 66-28-518 regulates the towing of vehicles by landlords. A

landlord’s right to tow an unauthorized vehicle depends on whether the landlord has posted signs

displaying the property’s parking rules. If the landlord posts such signs, then any vehicle in

violation of those rules, whether it be owned by a tenant, occupant, guest, or trespasser, can be

towed immediately. Tenn. Code Ann. § 66-28-518(. If signs are not posted, then the landlord

may only tow the unauthorized vehicle ten days after posting a written notice on the vehicle.

Tenn. Code Ann. § 66-28-518(a).3

Tenn. Code Ann. § 66-28-201(a) prohibits the use of rental agreements to waive or

forego rights or remedies that are afforded by the Act. Tenn Code Ann § 66-28-518 sets out the

conditions under which a landlord may resort to the towing of an automobile as a remedy for

violation of the landlord’s parking rules. Any attempt to use a lease term to waive the signage

posting requirements or otherwise modify the statutory remedies would violate Tenn. Code Ann.

§§ 66-28-201(a) and 66-28-518 and would therefore be ineffective.

6. You have asked if a landlord can prohibit a guest of a tenant from visiting the

tenant’s leased premises. Absent a clause in the lease which gives the landlord power to limit

visitors, a tenant can freely invite any person onto the property. The right to quiet enjoyment of

the property is an implied term of every lease. Couch v. Hall, 412 S.W.2d 635, 637 (Tenn.

1967); Marshall v. Summers, 934 S.W.2d 647, 650 (Tenn. Ct. App. 1996). The right of quiet

enjoyment affords tenants with an exclusive right to occupy and use the property as they see fit,

subject only to the terms of the lease. Southern Bell Tel. & Tel. Co. v. Yates, 232 S.W.2d 796,

798-99 (Tenn. Ct. App. 1950). The right to quiet enjoyment of the property, however, may be

modified or limited by express provisions in the lease. O’Connor, 75 Tenn. at 223.

A lease may contain a provision that restricts the right of tenants to invite certain classes

of guests, such as convicted felons,4 or limits the length of time a guest may remain. Absent

such restrictions, the right to quiet enjoyment would afford a tenant with the right to invite

whomever the tenant desires onto the property, free from the landlord’s oversight.

7. You ask if a landlord will forfeit any claim for damages to leased premises because of

a failure to provide the tenant with a damage cost estimate at the time the lease is terminated.

Tenn. Code Ann. § 66-28-301((1) states that upon termination of the leasehold, “[t]he landlord

shall inspect the premises and compile a comprehensive listing of any damage to the unit that is

the basis for any charge against the security deposit and the estimated dollar cost of repairing the

damage. . . .†Tenn. Code Ann. § 66-28-301© states, in part, “No landlord shall be entitled to

retain any portion of the security deposit . . . if the final damage listing required by subsection

( is not provided.â€

3 A landlord may also tow a vehicle ten days after posting notice on the vehicle if the vehicle has flat or missing

tires, is not operational, has a missing or broken windshield, is missing any fenders or bumpers, or has been out of

compliance with state and local vehicle tag registration for more than thirty days. Tenn. Code Ann. § 66-28-519. A

landlord can tow a “nuisance vehicle†24 hours after posting notice on the vehicle. Tenn. Code Ann. § 66-28-520.

4 See, e.g., Ross v. Broadway Towers, Inc., 228 S.W.3d 113, 123 (Tenn. Ct. App. 2006) (public housing resident

could be evicted for having live-in caretaker who was a convicted felon, in violation of lease terms).

Page 6

By its terms, Tenn. Code Ann. § 66-28-301© prohibits a landlord from retaining a

security deposit if no written estimate of damages is given to the tenant at the time a lease is

terminated. There is nothing in the statute to indicate that the failure to provide such a list of

damages releases the tenant from any liability. To the contrary, Tenn. Code Ann. § 66-28-301(g)

preserves the landlord’s right to recover from the tenant any damages that the landlord is entitled

to receive under the Act. This would include recovery of the cost of any cleaning needed to

restore the property to its pre-rental condition, Tenn. Code Ann. § 66-28-401(2), and the cost of

repairing damage intentionally or negligently caused to the property by the tenant, Tenn. Code

Ann. § 66-28-401(4), as well as any other claims available to the landlord under the lease. Tenn.

Code Ann. § 66-28-505©.

ROBERT E. COOPER, JR.

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

BENJAMIN A. WHITEHOUSE

Assistant Attorney General

Requested by:

Honorable Tony Shipley

State Representative

204 War Memorial Building

Nashville, TN 37243

[BryanP]

The solution to this is the same as restaurants that post: don't spend your money there. Make sure they know you're going elsewhere and why.

[TripleDigitRide]

Darn it.

[Guest HvyMtl]

Two things to remember:

1. The AG's opinion is simply that OPINION - and NOT binding in court. Typically the AG's opinion is given by request from a member of the legislature on a situation that has not been in court...

2. Bryan P is ON TARGET - move, or do not rent, and TELL THEM WHY - Hitting businesses in the wallet could make them change their minds...

[MikeW]

whata buncha

[Fallguy]

Very long discussion already going here http://www.tngunowners.com/forums/newsworthy-reports/29486-tn-attorney-general-says-landlords-can-ban-tenants-guns.html