I know the arguments for and against homeowners associations, and though I’m aware that they can be of some benefit, I’m still glad that I haven’t lived in a neighborhood with an HOA for over a decade. We actually had a pretty decent HOA when we lived in northern Virginia, though we would occasionally be dinged for silly things like a backyard climber for our kids that was a couple of feet too close to our home or not raking and bagging my leaves fast enough for my neighbor’s liking. For the most part the HOA in our neighborhood was pretty reasonable, but I’ve heard plenty of horror stories from friends and family who’ve had to deal with much worse.
Lawmakers in South Dakota are now hoping to spare homeowners and renters in HOA neighborhoods from any attempt to use the neighborhood association to push gun control measures on residents. SB 39 sailed though the state Senate on a 30-3 vote just a week after its introduction, and on Monday the House Commerce and Energy Committee gave their own stamp of approval in an equally lopsided 11-1 vote. The text of the bill is short and sweet, but would offer substantial protections for those living under HOAs.
A homeowner’s association may not include or enforce a provision in a governing document that prohibits, restricts, or has the effect of prohibiting or restricting the lawful:
(1) Possession, transportation, or storing a firearm, any part of a firearm, or firearm ammunition; or
(2) Discharge of a firearm.
For the purposes of this section, the term “governing documents” means a written instrument by which a homeowners’ association may exercise power to manage, maintain, or otherwise affect the property under the jurisdiction of the homeowners’ association.
For the purposes of this section, the term “homeowners’ association” means any incorporated or unincorporated association in which membership is based upon owning or possessing an interest in real property and that has the authority, pursuant to recorded covenants, bylaws, or other governing documents, to assess and record liens against the real property of its members.
Is this a major problem in South Dakota? I have no idea. SB 39 could very well be a preemptive measure for legislators looking to bolster their 2A bona fides in a state that already has very good gun laws in place, including constitutional carry. Even if that is the case, however, it’s still beneficial to gun owners, and this is apparently an ongoing concern in other parts of the country.
Last fall one Florida resident wrote a real estate columnist at the South Florida Sun-Sentinel describing her HOA’s attempt to ban guns “everywhere in the community, even in residents’ homes” and wondering if this was legal. According to columnist and real estate lawyer Gary Singer, the answer, at least in Florida, is maybe. While Singer says HOA rules barring gun possession in the home would most likely be tossed out at the first legal challenge, restrictions outside of the home have a better chance of surviving legal scrutiny.
Some lawyers believe that a community association can restrict firearms on common property, while others point out that owners have an ownership interest in the common areas.
If your community feels it has a particularly good reason to restrict concealed carry in a common area, it should still proceed cautiously. First, it may open itself to an expensive lawsuit by disagreeing owners. Second, this type of rule can prove challenging to enforce given the hidden nature of carrying a gun concealed.
Finally, it can be argued that by restricting residents’ ability to defend themselves, the association is taking that responsibility onto itself. This can lead to problems if a resident becomes a victim of a crime if the community does not take adequate steps to provide security.
With all the potential problems and pushback with this sort of rule, this is likely an area better left to the governmental authorities.
Totally agree, but not every HOA board member around the country is going to feel the same way. SB 39 seems like a reasonable and common-sense approach to curbing potential abuses by homeowners associations, and one that can and should be replicated by lawmakers in all 50 states. Your local HOA telling you how short your grass must be or what color your house must be painted is bad enough, but demanding you give up your Second Amendment rights to comply with HOA regulations is utterly ridiculous.