Houses and other buildings that have been abandoned are often the site of criminal activity. State law varies on whether a person can be charged with burglarizing or trespassing on property that has been abandoned.
State laws on trespassing and burglary vary, but here are the defining elements of these crimes.
Going onto property without permission can result in charges for burglary or trespassing. For burglary, the prosecution must prove that the defendant entered into a building or structure without permission with the intent to commit a crime, often theft, inside. For example, a person who goes into a warehouse intending to steal office equipment has committed burglary. The intended crime does not have to occur for the person to be charged with burglary – it is enough that the defendant entered the building or structure with illicit intent. In many states, home invasion burglaries (burglaries of places where people live or sleep) are punished more severely than burglaries of other buildings.
Trespassing is a less serious crime and is committed by going onto someone else's property without permission. For example, a person who goes into a neighbor's apartment without permission to take a nap has committed trespass. In some states, burglary is limited to entering a building with the intent to commit a felony (a crime punishable by state prison time) or theft inside. In these states, a person who goes into a building intending to commit a less serious crime, such as misdemeanor vandalism, could be charged with trespassing. Trespass of a building is often punished more severely than trespass of open land.
Laws against trespassing and burglary are intended to protect people's homes and property from intrusion by unwanted visitors, and prevent violent encounters between intruders and people who might discover them on their land or in their homes or workplaces. Because the goal of these laws is to protect the privacy and sanctity of private property, the fact that the property is abandoned is sometimes a defense to burglary or trespassing.
In some states, such as Connecticut, it is a defense to a charge of burglary that the building is abandoned. (Conn. Gen. Stat. § 53a-104.) So, a person who goes into an abandoned building and steals fixtures could be convicted of theft, but not burglary. Abandonment is also a defense to a charge of trespassing in many states, such as New Jersey. (N.J. Stat. Ann. § 2C:18-3.) For example, a person in New Jersey who goes into an abandoned warehouse could not be charged with trespassing.
In some states, that fact that a building is abandoned is not a defense to any burglary charge, but it protects a defendant from a more serious burglary charge. Oftentimes, burglaries of “dwellings” or “occupied structures” are punished more severely than other burglaries. A dwelling is a place where a person lives or sleeps, such as a house, dorm room, or houseboat. An occupied structure is a building or vehicle where people live or work, such as a barn or a trailer used as an office. In some states, an abandoned house or building cannot constitute a “dwelling” or an “occupied structure” for the purpose of imposing a more severe punishment, but a person who enters into an abandoned home in order to commit a crime could still be charged with simple burglary.
Oftentimes, burglary and trespassing can be punished more severely if a resident or occupant is present at the time of the offense. Again, these laws are intended to deter crimes that could result in violence between victims and intruders. What if there are squatters (people living or staying in the abandoned building without permission) present? For the purposes of laws that impose greater punishment for burglary (or trespassing) when people are present, the law usually requires that a person be lawfully present in the building. Squatters are there illegally, as trespassers, so an intrusion into their space wouldn't qualify as a burglary of an occupied dwelling. Similarly, a building that is used by squatters as a residence may not even qualify as a dwelling, even though people are sleeping there at night.
For example, suppose a man breaks into a squat house and assaults a person sleeping there. In some states, the man could be charged and convicted of assault, and perhaps even burglary, but not burglary of an occupied building or a dwelling.
Burglary can be a very serious offense. It is usually a felony and armed burglaries or burglaries of dwellings may carry sentences of up to 25 years in prison. Trespassing is often a misdemeanor, punishable by up to one year in jail and a fine.
If you are charged with or accused of burglary or trespassing or any other crime as a result of your presence in an abandoned building, you should talk to a local criminal defense attorney. An attorney can tell you whether abandonment is a defense to burglary or trespassing under state law and can evaluate your case and help you prepare the strongest possible defense.