We don’t happen to own a firearm, but we were still curious about our hypothetical rights to gun down an intruder in our New York City apartment—as well as whether co-ops (or condos) have any say over whether we can harbor a licensed weapon.
First, the law: It turns out that we New Yorkers may annihilate our invaders too, so long as a reasonable person would do the same.
“If they’re turning a key in the door and you shoot them dead, that probably won’t work,” says real estate lawyer Stuart Saft. “But if you catch somebody in the middle of the night in your living room and you rightfully feel in danger, that’s different. Unless, of course, you open the bedroom door and the guy throws his hands up in the air and apologizes. Then you would probably get in trouble for killing him, but of course the cops wouldn’t know that.”
So do co-ops and condos ever regulate gun-toting owners?“It’s an interesting point I don’t think anybody has ever thought about,” says Saft, who represents around 100 co-ops and condos. “I have never seen a set of house rules saying people can’t keep firearms in their apartment.”
He says the Second Amendment, guaranteeing citizens a right to bear arms, wouldn’t infringe on such a rule.
“It makes perfect sense,” he agrees. “A board might be concerned that a child would get hold of a weapon and shoot someone in the building, or that a gun would go off while it’s being cleaned and shoot through a floor or wall. Of course you would need a whole bunch of exceptions, like for cops with licensed guns.”
Eva Talel, another prominent real estate lawyer, also said she had never heard of any co-ops or condos banning firearms.
“I think in New York City in particular we are just not used to the idea of people having firearms in their dwellings, though that might be naïve,” says Talel.
Or just realistic. Neither lawyer could remember an incident involving a gun in one of their buildings.
Real estate attorney Aaron Shmulewitz dug back some years to recall the time an East 70s co-op resident fired a gun several times out his window for no apparent reason. He was subsequently evicted for defaulting on his maintenance, though these days the behavior might support a Pullman-style eviction.
Shmulewitz says that one could argue that unlicensed gunowners are violating their co-op's proprietary lease, which typically requires residents to use their apartment "in accordance with the law." But citing a case in which a court refused to allow the eviction of a tenant for "mere possession" of child pornography, Shmulewitz believes that mere possession of an unlicensed gun wouldn't be enough for eviction.
"If you use the apartment to sell unlicensed guns, that's another matter," he says.