The crime of trespassing is committed by going onto property, usually property that belongs to someone else, without permission. But can people ever be charged and convicted of a crime for going onto their own property without permission? You might be surprised to learn that in most states, in certain situations, people can be charged with trespassing or burglarizing their own property. Burglary is committed by going into a building without permission in order to commit a crime inside. The issue most often comes up in cases involving domestic violence or during landlord-tenant disputes. For more information on these crimes and on domestic violence, see Trespassing Penalties, Burglary: Penalties and Sentencing, Home Invasions, and Domestic Violence Laws and Penalties.
The law recognizes different kinds of property rights: a person can have an ownership right, or a possessory right, or both. For example, a landlord owns a house, but does not have the right to be there any time he or she pleases. The right of possession belongs to the tenant. Similarly, a spouse may jointly own a house but either due to separation or a protective order, the other spouse may have the sole right of possession.
In trespassing and burglary cases, a person who both owns and possesses a piece of property cannot be charged with these crimes because, absent unusual circumstances, the defendant always has permission to be on the property. However, a person who has an ownership interest in a property, but not a right of possession, can be charged with trespassing or burglarizing his or her own property in some states.
The situation most often comes up when the property is or was once a shared home. For example, if you are married and own a home with your spouse, both you and your spouse have the right to be in the home whenever you please. Assuming you happily live together in the home, neither spouse can be charged with trespassing or burglary in the marital home. But what if one person moves out? In most states, the most relevant fact in deciding whether a person is on property “without permission” is whether the defendant currently lives in the home. Courts in several states, including Alabama, Florida, Ohio, and Washington, have concluded that a person who does not currently live in a home can be charged with burglary or trespass, even if the person legally owns or rents the home, and his or her name is on the title or lease.
In some situations, it will be up to the jury or judge to decide if the defendant has permission to enter the property. For example, suppose a man and a woman live together as romantic partners. They break up. He moves out at her request, and she changes the locks, and pays the rent by herself, but his name is still on the lease. He then comes into the home and attacks the woman and tries to take some of her property. In this situation, the jury could conclude that the man did not have permission to enter the residence because he no longer lived there at the time of the attack. (Washington v. State, 11 So. 3d 980 (Fla. Dist. Ct. App. 2009).)
However, in Illinois, states lawmakers specifically excluded this kind of domestic dispute from prosecution under the state’s home invasion law. In Illinois, a person who has any ownership interest in a home cannot be charged with home invasion, even if the person does not live there. (People v. Oakley, 719 N.E.2d 654 (Ill. 1999).) Of course, in states like Illinois, a owner who comes into a home and hurts someone or steals someone else’s property can still be charged with the assault or theft, but not for burglary or home invasion. For more information, see Burglary and Home Invasions in Illinois.
In most states, a court order – such as a protective order – can prohibit a person from entering property (even property that the person owns) and, under such circumstances, any entry into the property will be made without permission. (Ex parte Davis, 542 S.W.2d 192 (Tex. Crim. App. 1976).) For example, suppose a couple divorces and the marital home is awarded to the husband; the wife is ordered to stay away from the home. She could probably be charged with trespassing or burglary for going onto the property without his permission, even if her name is still on the mortgage or deed. For more information on protective orders, see Violation Of A Restraining Order.
Occasionally, defendants have argued that their marital status protects them from a charge of burglary. The argument goes like this – I am married to my wife and therefore I have “permission” to enter any residence or building that she occupies, even if I do not live there, because I have a legally protected right (known as the right of consortium) to be with my wife.
Though it may seem hard to believe now, before the 1980s, some courts actually found that men could not be guilty of burglary when they broke into their estranged wives’ separate residences in order to commit violent offenses against these women. While the men could be and were convicted of the resulting violent attacks, they could not be convicted of burglary because the right to consortium gave them permission to enter their wives’ residences, even over the wives' objections. (See, for example, Vazquez v. State, 350 So.2d 1094 (Fla. Dist. Ct. App. 1977), cert. denied, 360 So.2d 1250 (Fla. 1978).) However, beginning in the 1970s and 1980s, laws regarding domestic violence changed dramatically to offer more protection to abused spouses. Generally, these days, courts have rejected consortium claims and found that people have no right to enter a home merely because it belongs to their spouse. (See Cladd v. State, 398 So. 2d 442 (Fla. 1981) (rejecting the decision in Vazquez).)
Landlords can also be charged with trespassing on their property when they fail to follow state laws intended to protect tenants in their homes. While laws vary from state to state, in most states landlords are required to give notice to tenants before they enter the property, and they may enter only for specified reasons. If a landlord does not give notice to the tenants, or enters for an unauthorized purpose, the landlord may be charged with trespassing. In short, although the landlord owns the property, the law requires the landlord to respect the tenant’s right of possession.
If you are charged with burglary or trespassing on any property, whether you believe you had a right to be there or not, you should talk to a criminal defense attorney who practices locally. An attorney can investigate your case and determine whether you have any defenses to the charge or are in a good position to plea bargain, go to trial, or obtain a favorable sentence. An attorney can help you protect your rights.