Is It a Crime to Enter a Home Under Construction?

A person who enters a construction site without permission can face serious penalties for residential burglary or trespass.

By , Attorney · Mitchell Hamline School of Law
Updated January 20, 2023

Construction sites tend to be common targets for burglaries, thefts, and trespass crimes. People often target homes or other buildings under construction in the hope of stealing appliances, lights, fixtures, copper pipes, or construction materials and tools. It's also common for people (especially teens) to trespass on construction sites to engage in unlawful activities, such as underage drinking, drug use, defacing property, or theft.

Depending on the state law and the person's intent, unlawfully entering construction sites can result in serious criminal charges for burglary or trespassing. If the construction is a home build, even harsher penalties may apply. In this article, we'll review trespassing and burglary laws that apply to construction sites, including residential (or home) construction sites.

Is Entering a Construction Site Illegal?

Knowingly entering a construction site without permission is illegal (and, potentially, dangerous). You could be charged with burglary or trespassing depending on the circumstances.

Trespassing on a Construction Site

Trespass involves unlawfully entering onto property posted as private (with signs or other markings) or entering onto a property after being instructed not to return. The crime of trespass applies to a broad range of property, including land, buildings, homes, and construction sites.

Burglarizing a Construction Site

A person commits burglary by breaking and entering a structure without permission and with the intent to commit a crime (often theft) inside.

As you can see from the definition, to commit burglary, there must be a "structure" to break into and enter. Structures can range from sheds and office buildings to apartments and homes. Depending on how a state defines a structure, it may include homes and other buildings under construction. Some state laws consider a "structure" to be anything that provides human shelter, which could be an unfinished building that has partially enclosed walls and a roof. Other states might set the threshold higher and define a structure as also containing doors and windows.

What Happens If You Trespass or Burglarize a Home Under Construction?

The penalties for both trespassing and burglary can increase significantly if the targeted property is a "home," which raises an important question. At what point does a structure under construction meet the legal definition of a "home"? (Most statutes use the terms "residence," "dwelling," or "habitation.")

The answer depends greatly on the statutory definitions and case law. Many states require that a structure be "habitable," "livable," or "adapted for overnight accommodation" to be considered a residence. That means, even if the home isn't technically finished for construction purposes, once it has running water, electricity, insulation, and heat, the law may consider it a residence. The law doesn't require that the home be occupied, just that it could be.

What Are the Penalties for Trespassing on a Construction Site? Is It a Felony?

Trespass crimes typically start as low-level misdemeanors and increase based on the type of property entered. Many states' laws have harsher penalties when trespass involves a construction site or residence. A person who trespasses on a construction site might face a class A or gross misdemeanor penalty of up to a year in jail and fines. Trespassing on a home build, if it's considered livable, could result in a low-level felony and the possibility of a few years in prison.

What Are the Penalties for Burglarizing a Construction Site?

Burglary offenses are almost always felonies. States differ in how they classify and penalize burglary offenses. But, like trespass, a common classification involves the type of structure involved. Burglarizing a residence will carry much stiffer penalties than burglarizing an empty office building, for instance.

Punishment for Residential Burglary: Home Under Construction

Residential burglaries carry some of the harshest burglary penalties. Armed residential burglary and burglary of an occupied home are usually the most serious, with burglary of an unoccupied home being next (or close to next) in line. Given that most homes under construction would be unoccupied, they'd likely fall under this classification. While the penalties might not be as severe as other home invasions, a person could still be facing up to 10 or 15 years in prison.

Punishment for Burglary of a Construction Site

If the structure under construction isn't a home, a lower classification of burglary would likely apply. In some states, all non-residential burglaries fall to the next lower degree of burglary. Other states further divide burglaries of non-residential structures by type of building. For instance, a state might have separate penalties for burglarizing government buildings, places of worship, commercial buildings, schools, or historic buildings. Depending on state law and the type of building, burglarizing a non-residential structure under construction could mean penalties of 5 to 10 years' incarceration.

Defenses to Burglary and Trespassing Charges Involving Construction Sites

A common defense strategy for burglary and trespass charges is to poke holes in the prosecutor's case. If the prosecution doesn't prove each and every element beyond a reasonable doubt, the judge or jury must acquit on those charges.

For instance, a defense attorney might argue that the defendant can't be convicted of residential burglary because the unfinished building doesn't meet the legal definition of a "residence" as habitable or livable. Or, if only the foundation is laid and a few walls are framed but not enclosed, the site isn't likely a "structure" and can't be burglarized. A similar strategy can be used in trespass cases by arguing the site wasn't properly posted or that the defendant had permission to enter the site, and thus, no trespass was committed.

Obtaining Legal Assistance

If you're charged with burglary or trespass or any other crime related to a home or other building under construction, you should talk to a local criminal defense attorney. An attorney can explain the law in your state and help you navigate the criminal legal system.

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