Apartment Carry

[jh7107]

I live in an apartment complex that is gated in Houston. I'm signed up for my LTC class on April 23. Until my plastic comes in, is it legal for me to carry concealed inside my complex while I walk my dogs around? Would that be considered private property and allow it?
Thanks for the feedback.

[Javier730]

No its not legal. Wait for your LTC to come in.

[AJSully421]

No its not legal. Wait for your LTC to come in.

Agreed. Case law has shown that "common areas" of a community or a complex are not an extension of your residence, and it requires a license to carry there unless you are directly en route from your residence to your vehicle.

[jh7107]

Thanks! That's what i thought, but I wanted to run it by the brain trust here.

[thetexan]

No its not legal. Wait for your LTC to come in.

Agreed. Case law has shown that "common areas" of a community or a complex are not an extension of your residence, and it requires a license to carry there unless you are directly en route from your residence to your vehicle.

...except in condo type property if your ownership in the condo includes a partial ownership in the common areas according to the associated covenants.

46.02 would allow you to carry directly to and from your apartment to your vehicle without the LTC.

tex

[Charles L. Cotton]

No its not legal. Wait for your LTC to come in.

Agreed. Case law has shown that "common areas" of a community or a complex are not an extension of your residence, and it requires a license to carry there unless you are directly en route from your residence to your vehicle.

...except in condo type property if your ownership in the condo includes a partial ownership in the common areas according to the associated covenants.

46.02 would allow you to carry directly to and from your apartment to your vehicle without the LTC.

tex

Correct. There's a case specifically on point.

Chas.

[Alf]

If someone rents a condo do they step into the unit owner's shoes or do 30.06 signs in common areas have forc e?

[thetexan]

I believe it would be defined by 46.02a1

"...on the person's own premises or premises under the person's control..."

As a renter of a residence you are allowed to carry in that residence under 46.02. The question then is, are you as a renter renting the residence and everything associated with that residence, meaning the common area partly owned by the owner. The owner is clearly allowed. The question is, are you?

Edward Chiarin was found guilty in a lower court of violating 46.02 by carrying a handgun in the common area of a condominium complex in which he owned one of the units. He appealed that conviction to the Fifth District Court in Dallas and the conviction was overturned. The State further appealed the reversal of the conviction to the Texas Court of Criminal Appeals.

In the Texas Court of Criminal Appeal's case of CHIARINI v The State of Texas, September 17, 2014 this precise issue came up. The State of Texas used four previous cases to support its claim that Chiarini had violated 46.02 by carrying a handgun in the common area of a condominium for which he was the owner. The State argued that "...the common area does not constitute [Chiarini's] own premises because he does not control the area..." and was thus in violation of 46.02 which has, as one of its elements, the requirement that the carrier of a handgun either own the premises or be in control of it.

Chiarini was convicted in the lower court, and that ruling was overturned by the first appellate court ruling. In the process of the State's argument at the original trial it relied on four cases which it believed supported their claim. The ruling of the second appeals court reads....

"The State also relies upon cases that involve the possession of a handgun in the common area of an apartment complex, or of a condominium complex where the defendant was a renter.19 The court of appeals (the first appeals court)[sic] in the present case found those cases to be distinguishable because none involved an owner of a condominium unit with an undivided legal interest in the common areas of the complex.20 We agree with the court of appeals. All four cases cited by the State involve people who were renters, not owners. The cases are inapplicable.21 We conclude that, because appellant was a co-owner of the common area, the common area was his “own” premises under the literal text of the statute."

This establishes that a renter, by virtue of him not being the owner with a "legal interest in the common areas" is not afforded the protection of 46.02 in the common areas. You may ask then if a renter cannot carry in the common areas then can a renter carry within the unit that he is renting. The final appellate ruling dealt with this by distinguishing between the common areas and the exclusively owned units, that is, in 3.3, "EXCLUSIVENESS OF OWNERSHIP. Each Owner shall be entitled to exclusive ownership and possession of his Unit. Each Owner may use the Common Elements in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners." The portion of the premises that the owner has exclusive ownership of, his unit, is distinguished from the common areas that has the joint tenancy with the other owners. And it is that common area that was in question, that is, does the 46.02 protections the owner enjoys in his exclusively owned unit extend to the multi-tenant owned common areas? There was never any question as to whether 46.02 protections extend to the exclusively owned unit or one leased.

And, as we all know, you may carry in your rented apartment unit, house or condo, The crux of the issue here was areas of common ownership.

So...in answer to your question, my take on this is that the rented condo is OK under 46.02 as a renter. The common areas for renters (or any non unit areas) are off limits under 46.02 if you do not have a license except as per the provisions of 46.02 (ie directly to or from your vehicle, etc). If you do have a license then 30.06 and 30.07 kick in and the HOA for the condo would have to notify via .06/.07 to prohibit carry in common areas for non-owner licensees, just like any other private property. An owner, however, has 46.02 authority in his owned unit AND any multi-tenancy common areas, regardless of license status.

So, in short, the owner, as per CHIARINI, is free to carry under 46.02 with no restrictions to concealment including the common areas. A renter may carry in the unit itself, but, as implied in CHIRANI, that unit represents the extent of the renter's "premises" under 46.02 and he may not carry in the common areas except as described above.

That, I believe, is the answer.

tex

[mr1337]

If someone rents a condo do they step into the unit owner's shoes or do 30.06 signs in common areas have forc e?

At that point, it would be considered property under your control, and you would be able to carry.

[The Dude]

If I rent a hotel room for the night, that room is under my control. However, the lobby is a different story, and I need to be going between my vehicle and room to have the protection of MPA. I can't hang out in the lobby coffee shop while armed if they have a 30.06 sign.

[thetexan]

If I rent a hotel room for the night, that room is under my control. However, the lobby is a different story, and I need to be going between my vehicle and room to have the protection of MPA. I can't hang out in the lobby coffee shop while armed if they have a 30.06 sign.

As a non licensed renter of a hotel room the 30.06 sign means nothing as to your ability to linger in the lobby, but restricts you from lingering in the lobby only if licensed. As a non licensed renter of the hotel room you could not linger in the lobby with or without the 30.06 sign...as per 46.02. So, yes, you are correct in that a 30.06 sign stops lobby lingering of licensed carriers, and 46.02 stops the unlicensed carriers. So, under CHIARINI, an unlicensed renter of a hotel room can never linger in the lobby under 46.02 under any theory that the common areas of the hotel are "held legal interests" and thus owned or in control of the room renter.

What CHIARINI determined is that joint ownership in a common area of multi tenancy indeed meets the "ownership or control" clause of 46.02. And it further distinguished that renters of that kind of property do not enjoy that same 46.02 common area protections using any argument that those common areas are premises under the control, or as held legal interests of the renter.

tex