Tennessee Gun Owners - 2nd Amendment Issues

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(b) 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(b) 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(b) 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
Act”) 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.

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(b) 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

Tenn. Code Ann. § 66-28-402(b) 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.”

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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(b) 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(b) 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(b) 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(b) 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(b). 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(b)(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(c) states, in part, “No landlord shall be entitled to
retain any portion of the security deposit . . . if the final damage listing required by subsection
(b) is not provided.”

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.

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).

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By its terms, Tenn. Code Ann. § 66-28-301(c) 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(c).
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

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