Can I be convicted of burglarizing a house under construction?

Burglary involves illegal entry of a structure or dwelling, but whether a structure in the making constitutes a "structure" or a "dwelling" will depend on state law.

Burglaries and thefts of construction sites are common. People often target homes under construction in the hope of stealing appliances, lights and fixtures, and construction materials and tools. In many states, a person who burglarizes a house under construction can be convicted of burglary or, sometimes, trespassing. (Burglary involves entering without permission and with the intent to commit a crime, often theft, inside; trespassing is entry without consent.) Of course, a person who steals items from a construction site can also be convicted of and punished for theft. Occasionally, state law imposes increased penalties on thefts from construction sites.

Burglary

Historically, burglary was defined as breaking and entering into a home at night with the intent to commit a felony (a crime punishable by state prison) inside. Today, many states have done away with these narrow requirements and a person commits burglary by entering into any building or structure without permission with the intent to commit a crime inside. For more information on burglary, see Burglary: Penalties and Sentencing and Home Invasions.

In most states, a house under construction would be considered a building or a structure, unless perhaps it was in the earliest stages of development. For example, if a foundation has been laid, but no walls are yet framed, then there would be no building to “enter” and the entry may have to be charged as trespassing (explained below).

Home Invasions (Burglary of a Dwelling)

In many states, home invasion burglary, also called burglary of a dwelling, is punishable by longer sentences than other types of burglaries. State law varies, but usually a dwelling is any place that a person uses for sleeping or living, either regularly or occasionally. In some states, a dwelling also includes any place that is designed to be used for sleeping or living. For example, a yurt that a person lives in is a dwelling, as is trailer or a dorm room.

When does a house under construction qualify as a dwelling? Is it when the house is framed? Once the walls are up? Once a door is installed? There is no clear line, and each situation must be evaluated based on state law. Prosecutors and judges will consider:

  • Does the home have walls? Are they insulated?
  • Has drywall been installed?
  • Does the home have running water and electricity?
  • Have heating and air conditioning been installed?
  • Are there doors and locks?
  • Have appliances been installed?
  • Could a person live there?

Even if the building does not qualify as a dwelling, the defendant may still be convicted of burglary of a building or trespass.

Trespassing on a Construction Site

Usually, trespassing (going onto land belonging to someone else without permission) is a less serious crime than burglary. In some states, trespass is punished more severely if the land is a construction site. Often times, the construction site must be clearly marked. For example, in Florida, the site must have postedsigns that clearly designate the area as a construction site. For more information on trespassing, see Trespassing Penalties.

Punishment

Burglary is usually a felony, punishable by terms of from one to ten or even 25 years in state prison, with longer prison terms reserved for home invasion burglaries and armed or violent burglaries. Trespass is often a misdemeanor, punishable by up to one year in jail and a fine.

Obtaining Legal Assistance

If you are charged with burglary or trespass or any other crime related to a home 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 justice system.

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