Constitutional Carry

Last Updated on Friday, 8 March 2019 02:32 Written by Chris Griswold Friday, 8 March 2019 02:29

Guns and “Constitutional” or “Permitless” Carry.  We’ve all been hearing about this issue a little bit more recently in the news, for those who can legally possess a firearm – now law here in Oklahoma to become effective November 1, 2019 (though still subject to a federal background check to purchase the firearm).  In response to a number of inquiries I’ve received from some concerned commercial property owners (as commercial landlords) and property managers (who act for those commercial landlords) in our business community – I wanted to write a short piece about the do’s and don’ts of enacting a uniform gun policy at your privately owned or managed commercial properties which are open to the public.  I’ll answer the most commonly asked questions from the groups mentioned above.  This should be helpful to everyone… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Constitutional Carry

Question #1:
As the owner/landlord or property manager (for such owner/landlord) of a commercial property, can I restrict, prohibit or control people (including commercial tenants) who are otherwise able to open or concealed carry (e.g., non-felons, 21 years of age or older, or those 18 years or older in military service) from coming onto my property with a handgun?

Answer:
YesCommercial property owners/landlords and property managers (who act on behalf of such commercial property owners/landlords) can control the possession of weapons on any commercial property “…owned or controlled…,” whether concealed or unconcealed.  This means that, as either a commercial landlord or a property manager, you can control whether or not your commercial tenants or other people bring concealed or unconcealed guns onto your owned or managed commercial property.

Question #2:
How can I exercise such restriction, prohibition or control?

Answer:
If the privately owned commercial building or property is open to the public, property owners/landlords or their property managers shall post signs on or about the commercial property stating such prohibition, as to either concealed or unconcealed weapons, or both.

[Note:  If the commercial building or property which is leased by a commercial tenant is not open to the public (i.e., a space which only the commercial tenant will go in and out of, and no one else, like a standalone building), then the commercial tenant can carry concealed or unconcealed guns in their demised space, unless it’s written in their lease that they can’t  – however, as a technicality, if and when they pass through any publicly trafficked areas of your owned or managed commercial properties (which are in between their non-public premises and the parking lots of your commercial property), they are still subject to the no carry signs you’ve posted upon the property, thereby violating your “no carry policy”; thus subjecting them to the consequences found in the answer to Question #4 belowSo, only if the commercial tenant’s premises are a private, stand alone building through which no public traffic shall occur (and no common areas exist), will you, as an owner/landlord or property manager, be barred from posting signage on your commercial property (i.e., their leased premises) which restricts persons from carrying concealed or unconcealed guns on that particular commercial tenant’s leased premises.]

Question #3:
“Is there anywhere on my commercial property that I cannot restrict, prohibit or control the presence of guns?

Answer:
Yes.  You cannot, as a commercial property owner/landlord or property manager, establish any policy or rule that has the effect of prohibiting any person (except for a convicted felon), from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle (i.e., parking lots).  In other words, you cannot restrict, prohibit or ban commercial tenants (or such tenant’s employee’s) from having guns in locked cars located in the parking lots of your owned or managed commercial properties.

Question #4:
“What happens if some person brings a gun onto my commercial property, either owned or managed, after I post signage to the contrary?

Answer:
It depends.  Be aware, the otherwise lawful carrying of a concealed or unconcealed handgun by a person who can lawfully carry a handgun on your owned or managed property that you have posted no carry signs upon subjects the person to either being denied entrance onto your property (if you know they are carrying ahead of time), or to being removed from the property if you ask them to leave after your discovery of such firearm (which means they need to leave if your security asks them to leave).  If the person thereafter refuses to leave your commercial property and a peace officer is summoned, the violator will be in violation of law.

Question #5:
“What about publicly owned property?  What about apartment complexes and residential rent houses?

Answer:
Don’t carry on property owned or leased by public entities, such as jails, prisons, airports, or public or private elementary or secondary schools – among other public property types.  As for apartment complexes and residential rental homes, look to the leases (as it usually is private property) and speak with a qualified attorney.

The information presented within this article is of a general nature and is not intended to be relied upon as legal advice in any particular matter without first consulting qualified counsel.

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Scooter Stuff

Last Updated on Monday, 7 January 2019 06:01 Written by Chris Griswold Monday, 7 January 2019 06:01

Scooter/Sidewalk Liability:  So what happens if you injure a pedestrian? Who’s liable if you take a fall? What’s the real risk to your wallet?  See below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material). 

Scooter Stuff

Riding up Main Street on a Lime or Bird Scooter, and all of a sudden you wreck and hurt yourself and another guy and his small son (on their way to drop his son off at school).  What now?  Not much law or precedent out there, but the thought process follows….

Question  #1:  If it happened after you were still drunk from the night before (i.e., out late; going to bars and various parties), what then?

Answer:  There’s a possibility you might be found more than ordinarily negligent (perhaps, criminally negligent, since the wreck becomes more than reasonably foreseeable).  Accordingly, your homeowner’s or renter’s personal liability coverage might not cover the accident (although they most likely would, without argument, if you hadn’t been out late the night before).  However, they might still cover you, then go subrogate your rights (whatever they are) against Bird or Lime.

Question #2:  Same facts above, except you went to bed early the night before, and hadn’t had any drinks, yet the wreck still happened. What then?

Answer:  Well, under these facts, your homeowners or renter’s personal liability coverage would probably pay (unless you have no such coverage), however, the facts would then turn towards an investigation of the scooter.  Was it well maintained, built to certain, public, commercially viable standards or defective somehow (or damaged after Bird or Lime dropped them off the back of a delivery truck way too hard, in the middle of the night)?  If any of the foregoing are a “yes,” then, the injured Dad (and his son) wouldn’t just sue you personally, but now very likely Lime or Bird too….

Question #3:  Same facts as #1 or #2 above, who does the Dad sue under each fact pattern (respectively)?

Answers:
Under Question #1:  The most apparently culpable person is you (i.e., the “drunk scooter rider”).  So, you’d definitely be sued personally (and you homeowner’s or renter’s insurer would respond on your behalf – unless they think that your getting drunk was, somehow, an “intervening wrongful or criminal act,” in which case, they wouldn’t cover).  However, even under Question #1, the reality is that the Dad would sue the “deep pockets” of Lime or Bird too, just to ensure a decent monetary recovery for his son.

Under Question #2:  The Dad would have much less reason/basis to sue you personally, instead, he’d very likely pursue just the “deep pockets” of Lime or Bird.

Question #4:  Same facts as above, but, hey, you’re injured too!  Who do you go after?

Answer:  You go after Bird or Lime under #2 for sure, since you apparently did nothing wrong (unless you were driving wreckless – while sober?).  However, under #1, Lime or Bird would seemingly have a defense against your negligence of getting drunk and operating a scooter – while in reality, your health insurance company might pay all of your claims/medical bills, then go subrogate any of your rights of recovery against Lime or Bird later on (after you’re already made whole by your health insurance carrier).

Question #5:  What’s the real risk to your wallet here folks?  What do you need to do when renting/using a scooter on a regular basis (like living/working downtown full-time)?

Answer:  You need to ride a scooter with the same degree of etiquette/safety/reasonableness with which you drive a car (eventhough you can’t yet add scooter use to your auto liability policy).  If you do unreasonable/wreckless stuff, you’ll wind up under fact pattern #1 above – going through this analysis.

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1031 Exchanges

Last Updated on Wednesday, 10 October 2018 09:43 Written by Chris Griswold Wednesday, 10 October 2018 09:43

1031 Exchanges.  We’re sure to see a few more between now and the coming, end-of-year, accounting deadline.  Good stuff for everyone.  When it comes to the handling and treatment of real property in planning to later qualify for a 1031 exchange (or at least be eligible to qualify for an exchange, should the unforeseen or surprise need arise), see below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

1031 Exchanges

Question #1:  If you’ve thus far held properties for the use of either sale or development, and you’d now like to convert them over to a qualifying use of either investment or appreciation, what’s one of the first/best things you can do to accomplish this conversion?  

AnswerDeed the properties over into new entitiesOnce deeded, there’s obviously a strong argument that a new use has occurred.

Question #2:  Before doing a deeding drill, is there anything you might want to consider?

Answer:  First get confirmation from your accountant that the deeding over from the current entity to a new one (or new ones) won’t constitute an adverse, taxable triggering event!  If there’s danger lurking, go down to Question #4 below. 

Question #3:  However, even the foregoing “deeding procedure” can possibly require a little more diligence in order to well accomplish a more ironclad change of use to later ensure 1031 eligibility.  Why??

Answer:  There’s an IRS case where a developer held property for 12 years.  The property was mostly all held for sale and development, however, there were a few lots in the project (way back in the rear of the development I believe) that the developer held for investment and appreciation.  Later on, the IRS didn’t believe this intent, and the case went to tax court.  During the testimony being given, the IRS attorney asked the developer exactly when the few lots (in the rear of the project) had been switched over from being held for development and sale purposes over into investment and appreciation purposes?  In response, the developer was speechlessHe didn’t even have an answer; much less had it even (or ever) occurred to him that such use should have changed over from one to the other.  Take away?  Even though a “deeding over” didn’t occur here, it’s still important to combine a deeding over strategy with an actual change of use strategy – which I’ll describe more below.

Question #4:  So, if it’s not possible (or a bad idea) to deed over the properties to a new entity, what needs to happen?

Answer:    As I’ve said above, while it’s great to deed properties over into new entities, it’s not always possible or desirable.  So, you need to always demonstrate a change of use” – even with or without a deeding procedure.  The 3 things below are how you strategically substantiate this “change of use.”

Question #5:  What are the 3 things that must be done in order to accomplish a “change of use?” 

Answer:

A) Change of Physical Handling:  The first thing you must do is take down the “for sale” signs, as well as taking them out of industry journals, and off of online exchange mediums.  In otherwords, globally take the property(ies) off the market.

B) Change of Intent to the Public:  This is done by sending emails to your attorney, your accountant, your friends and your brokerage/listing partners that the property’s use is, as of a certain date, being changed over from being held for development and sale over to investment and appreciation.  This isn’t necessarily something you need to take out an advertisement for in the local newspaper, however, sending out an email and/or letters to these key people is a great way to have an “Exhibit A” to produce to the tax court, come time.

C) Change of Bookkeeping:  This one is overlooked sorely, by too many.  It involves good communication to your accountant or bookkeeper of your intent and desire to change such use of the properties.  However, unless the actual way the properties are handled/treated on the accounting books is actually changed, there is still a huge opportunity for your 1031 Exchange to be contested, due to the fact that the property’s accounting treatment was never ALSO changed over from one use to the other.  Don’t make this mistake!  Make sure you don’t stumble here and lose your ability to qualify for a 1031 exchange.

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