Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

Private Property

I. Introduction

Under the laws of most states, a person who holds an interest in real property may regulate affairs on the land. This includes the carry or possession of firearms as a general rule. However, there are a number of carve-outs across the states. For instance, some states carve out exceptions for employees.

Unless the employer is excluded, the general variant of this legislation allows an employee to bring a firearm onto workplace property so long as it remains in his or her vehicle. If the GLBS Guide is gelling with Readers, it should seem apparent that this is not a foreseeable exception to most reciprocal carry.

On the other hand, some states have penal statutes on the books that prohibit a person, including a licensee, from carrying a firearm on the property if it is posted and/or required notification by the person in possession of the property. Failure to do so may be criminal and the property owner may direct the person to leave. A failure to leave may subject the licensee, including reciprocal licensee, to arrest for criminal trespass.

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Thus, depending on the nature and circumstance of Your reciprocal carry, You may need to dig into state property law, criminal law (i.e., trespass), or ordinances adopted by units of government below the state level.

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II. Definition/Explanation of Key Concepts

While states will vary, there is some uniformity with regard to the definition and/or explanation of the key terms and concepts as follows:

A. Real Property

Conceptually, as reflected in the general definition, there are two (2) types of property. The first is land, or real estate, which may be improved, which means it has a structure built upon it as a general matter.

B. Personal Property

The other type of property is a tangible thing, such as a firearm itself. This Chapter’s focus is real property, unimproved or improved: all of those public and private places not already addressed in the GLBS Guide. Personal property analysis thus stops with its understanding for purposes of this Chapter.

C. Real Property Interests

  1. Deeded Property

Broadly, real-property interests are of two (2) types. The first is real property owned by a deed. An example is a personal family home. However, real property may be encumbered by a mortgage, whereby the lender holds a security interest in the property by legal interest in the loan. The property owner, by deed, owns the whole bundle of rights in the land, such as minerals in the ground, unless sold off, in perpetuity.

  1. Leased Property

The second type of real-property interests that a person or entity may possess is a leasehold estate in the property. Here, there is a written interest in the land given by the deed owner to the lessee for a period of time, which runs for a fixed number of years. Taking the family-home example just provided, if this home were leased out by the deed owner, there would be two (2) real estate interests in the same parcel of property. How the real property may be used by the lessee is specified by contract – the lease. This may be critical as it relates to firearms.

D. Licensees and Invitees

It should be self-apparent that most places that Readers visit are not owned by him/her by a deed or lease. Assuming the area is not posted “No Trespassing,” there is likely an express or implied license to visit.

Taking the example of a private home, the sidewalk to the front door is likely deemed an implied license to anyone to go up and ring the doorbell, although the occupant (deed holder or lessee) may subsequently revoke this implied license and ask him/her to leave. Failure to do so then constitutes trespass.

Equally, a public shopping mall and its signage and parking lot is an invitation to visit the property for shopping. However, the mall owner or tenant (lessee) may ultimately demand that the visitor leave. This revokes the right to be there. If the invitee fails to leave, the police may be called and the person may be arrested for trespass.

An event at a public or private place for which a ticket for entry is purchased is an express license, although the ticket holder may be an invitee. In fact, as a point of advanced learning, Readers should look at event tickets — in the fine print on the back, it will almost certainly relate that it is a license, revocable by the issuer at will.

This noted, the point of a licensee/invitee status in the context of real estate is that it merely confers a personal privilege to perform some act(s) on the land of another without conveying an interest in the land. A license to perform some act on real property of another is revocable by nature and unassignable. An invitee’s status is similar in that he or she must leave if requested to do so and has no right in the real estate, although the landowner owes the invitee a higher duty of care.

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III. Interplay of Landholder and Licensee or Invitee Rights to Possess Firearms

In any given circumstance of carry or possession of a firearm, the Reader must understand not only the prohibitions noted that might apply, but his/her status on real property otherwise. This will determine a lawful course of action.

An actual example from the Author’s practice makes this point. Leases routinely have contractual paragraphs barring the lessee from having firearms in the premises. If the tenant or lessee is a retail gun store, that clause, if not revised, would ensure continuing breach and actionable conduct by lessor (who should not have invited this problem by including this in a lease) and the lessee whose livelihood is at hand.

This same provision becomes much more difficult to analyze if the lessee/tenant operates a different type of business, such as a retail sporting-goods store. Presumably, customers who come into the premises by implied license, may carry firearms. Is the lessee in violation of his/her lease in conducting the anticipated affairs of the retail operation?

On the other hand, some states regulate certain private property, such as having a law that prohibits an employer from barring an employee from maintaining a lawfully possessed firearm in his/her vehicle. These provisions may bring this very issue to the legal forefront. The Author has received an inquiry along these lines from a business that leases its facility.

The business’ lease prohibits firearms on the premises, and it is a breach of the lease, exposing the employer to liability from the landlord, if it allows employees to maintain firearms in their vehicles. Yet if the business prohibits employees from such, the business is liable to the employees. This will be played out and decided through the courts at some point.

This noted, the deed owner and lessee may bargain for provisions of their lease through contractual negotiations. The implied/express licensees to the public/private facility must adhere to the terms that are imposed on them. These may include, exclude or be silent as to firearms. The licensee has no effective remedy other than refund of any admission price or civil rights matters if that be the case.

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IV. Liability in Ability to Regulate Firearms on Real Property

How all of this plays out and why it matters is the ultimate end of firearms on and within any given (improved) real property: someone is shot and injured or killed. If the owner by deed and/or lease can prohibit firearms from ever being on the property, this risk is reduced or eliminated.

Where it is not possible, probable, or desired to regulate or prohibit firearms on private or public property, the parties can anticipate risks in contractual relations if that is at issue (a lease, such as in indemnity provision for the landlord), make more-adept contingency plans for a negligent discharge of a weapon or intentional shooting, and/or insure the risk. What is not said here, but may be operational, is a political position on firearms rights.

Ultimately, on public or private property, the lessor and lessee are free to bargain for and contract provisions for firearms. The implied or express licensee must adhere to the rules or regulations. In Indiana, the store Tuesday Morning posts a sign on its storefronts that firearms are prohibited there. Gander Mountain welcomes loaded handguns by licensees.

One Set of Considerations of Many. Carrying a firearm is a dynamic event and not one to be considered in a static environment. In the course of a day, a person may go into a sporting-goods store and purchase a handgun, already possessing a license. If this is in a strip mall, and the licensee walks to the next store, he or she may not lawfully enter, if the store posts that no firearms are allowed. This is a civil matter, but nonetheless, a breach of law. If the purchaser then leaves, parks and goes into the local middle school to pick up his/her child, parks in the school lot, and leaves the handgun in his/her car, this might be a crime under state law.

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V. Conclusion

Private property considerations, to the extent criminal for violation, are set forth in state criminal codes. However, there is a wide array of situations that may arise in reciprocal carry where a licensee may not carry on private property. These are set out in state property law, civil law, or contract law. Such are beyond the GLBS Guide but nonetheless a consideration for all reciprocal carry. This general discussion should provide a framework of how to make the queries and obtain sound legal direction.

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Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More