State Legislation Encroaches on Private-Property Rights

June 5, 2006

In state capitals across the country, legislation that would infringe upon the constitutionally protected private property rights of commercial real estate owners and their tenants has become prevalent. Here is a look at two such issues facing the commercial real estate industry this year:

Legislation that places one constitutional right over another (specifically, the Second Amendment right to bear arms over Fifth Amendment private-property rights) has been introduced in several states. These attempts have also placed two traditionally conservative groups - the National Rifle Association, Fairfax, VA, and the business community - on opposite sides of the debate.

In 2001, Oklahoma led the way when it passed a law making it a felony for a property owner to prohibit employees from carrying firearms in locked vehicles in privately owned parking lots used by the public. A federal lawsuit challenging the law has been filed, but there has been no decision in the case. BOMA Intl. believes that building owners or their representatives must have the right to make their own policy decisions regarding issues such as guns in the private-property workplace.

Despite the unsettled lawsuit, several other states are following Oklahoma’s lead. Similar legislation has been introduced in Virginia. In March, the Virginia Senate sent HB 162 back to committee, effectively killing it for the year. In Florida, the Senate Criminal Justice Committee approved similar legislation (SB 206) by a vote of 5-2. The House of Representatives is now considering the issue.

In response to legislation in the Georgia House of Representatives, BOMA/Atlanta issued a position stating that it “supports all property rights: real, personal, and intellectual. Georgia law must equally balance and protect each of these rights while not prioritizing any one over another. The commercial real estate industry recognizes the need to protect the Second Amendment right to bear arms in a lawful manner ... as property owners, we defend our right to lawfully control access to our property and to set the conditions by which others voluntarily enter our premises. We oppose any legislation that subordinates our rights and our ability to manage private property in the interest of augmenting the rights of another.”

Telecommunications/Forced Access
BOMA Intl. and its local associations across the country have continuously mounted a defense against mandatory telecommunications access legislation at the state level. In 2005, the telecommunications industry conducted a two-pronged assault against the commercial real estate industry in several states in the Southeast and Southwest. BOMA local associations were able to defeat proposals in Arizona, Florida, and New Mexico. However, legislation passed in South Carolina banned preferred provider contracts and property owner incentives.

Following a successful campaign spearheaded by BOMA/Greater Tucson and BOMA/Greater Phoenix, Arizona Governor Janet Napolitano signed into law a telecommunications access legislation which upholds the private property rights of the state’s commercial real estate industry. BOMA/Greater Tucson and BOMA/Greater Phoenix are the first local commercial real estate associations to take such proactive steps. The legislation will serve as a model for other local associations to protect members’ rights.

The new law prohibits the state or any of its political subdivisions from requiring a building owner to accept or maintain facilities or services from one or more telecommunications providers. It also requires a building owner to provide tenants with written notice of the telecommunications service providers currently available in the building.

Unfortunately, Indiana’s real estate community lost its mandatory access fight this year. A new law prohibits property owners from entering into preferred provider contracts with telecommunications service providers. It does, however, allow an owner to place reasonable limitations on the hours when a provider can access the premises, as well as place conditions on a service provider’s building access in order to safeguard the property. The bill leaves some doubt as to what constitutes reasonable compensation; Indiana’s Utility and Regulatory Commission will eventually have to answer this question.

BOMA Intl. believes that telecommunications legislation and regulation at the federal, state, and local levels must preserve the viability of a free and effective marketplace that respects private property. Forced building entry privileges for telecommunications service providers are unnecessary, unmanageable, and unconstitutional. BOMA Intl. is strongly opposed to any such initiatives.

Protecting private property rights is the association’s top priority. On issues such as telecommunications/forced access, guns in private-property workplaces and parking lots, or any other issue involving property rights, BOMA Intl. will continue to work to protect the rights of building owners at all levels of government.

For more information on these and other issues, call BOMA Intl. at (202) 408-2662 or visit (

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