A person commits the crime of trespassing by going on to property—usually property that belongs to someone else—without permission. But can people 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, the answer is yes. In certain situations, people can be charged with trespassing or even burglarizing their own property. The issue most often comes up in cases involving domestic violence or during landlord-tenant disputes.
Trespassing occurs when someone enters or stays on another's property without consent or permission. Burglary is committed by going into a structure without permission in order to commit a crime inside.
A key element of both crimes is permission to enter. When wouldn't you have permission to enter your own home? That situation could happen if you're a landlord and you have a tenant or if the court ordered you to stay away from your home, such as in a domestic situation. In these cases, it often comes down to who has the right of possession.
The law recognizes different kinds of property rights: a person can have an ownership right, 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 or restraining order, the other spouse may have the sole right of possession.
A person who both owns and possesses a piece of property cannot be charged with trespassing or burglary 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.
Let's say you're 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 if you get divorced or move out, do you still have the right to go into the home whenever you please? Maybe not.
In a divorce, the court may order who has possession of the house and who does not. But what if one person simply 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 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 their 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, 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).)
In most states, a court order—such as a protective order—can prohibit a person from entering the 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.
A court can order a restraining or protective order even while a couple is married or residing together. The order will likely direct one party to move out, which must happen as soon as the restrained party gets the order. A sheriff might even be there to make sure the person leaves. If the person goes back to the home (even if invited), the person commits trespass and violates the order (another crime).
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, 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 have the unfortunate luck of locking yourself out of the house, is it a crime to break in? Not usually. If you both own and possess the home and are under no stay away orders, you can break into your house without facing criminal liability. If you're a tenant, you should call the landlord before doing anything drastic. In either event, you're probably liable for any damage done. And you're also at risk of a neighbor calling in a possible break in to the police. Try the locksmith first. Waiting a few hours for a locksmith is likely better than having a discussion with the police.
If you're 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 local criminal defense attorney. 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.