Condominium Owner May Carry Visible Handgun in Common Areas

A recent Texas court opinion has clarified that a condominium owner may legally carry a handgun in the common areas without violating the unlawful carrying of weapons statute. The Court of Criminal Appeals issued the holding in Chiarini v. State, construing Texas Penal Code Section 46.02. Mr. Chiarini, a unit owner, did a walk through on the common areas with a handgun in a holster on his leg. He was convicted of violating the unlawful carry statute. The court of appeals held that the common areas of a condominium complex are considered a unit owner’s “own premises” under the statute because of the owner’s undivided interest in the common elements.

The laws surrounding guns begin with the Second Amendment of the United States Constitution’s right to bear arms. The Texas Constitution (like most state constitutions) also provides the right to bear arms, subject to the power of the state legislature to regulate the wearing of arms. Texas statutes governing firearms are extremely complex. Legislation includes (like many states) Castle Doctrine and Stand Your Ground statutes (found in Chapter 9 of the Texas Penal Code). The Castle Doctrine generally allows a person to use deadly force as self -defense to an assault, with a presumption that the use of force is reasonable when an intruder is entering their occupied “habitation,“ vehicle, or place of business. The Penal Code defines habitation as a structure adapted for overnight accommodation, including each structure connected with it. In Texas, the Stand Your Ground clause of the statute provides there is no duty to retreat if the person is in a place where they have a right to be.

For the condominium owner, in light of the Chiarini v. State case the Stand Your Ground no duty to retreat extends to the common areas of the condominium project. What about the question of whether or not a unit owner may benefit from the presumption of reasonableness for the use of force from the Castle Doctrine statute? If the owner is present in the unit and the other requirements of the statute are met, the owner will have the presumption of reasonableness. What if the owner is beyond his own unit on the common areas? The definition of “habitation” must be considered. The answer depends on how connected the particular part of the common element is to the owner’s unit. If it is the owner’s limited common element patio/balcony, the presumption is more likely to apply than if the location in question is the common area parking lot.

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