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Trespass vs. Ejectment

October 11th, 2011
By Jeff Welty

Suppose that Bob Boyfriend moves in with Gina Girlfriend. Bob lives in Gina’s apartment for several months. He isn’t on the lease and doesn’t pay rent, but he does buy most of the couple’s groceries and does a fair share of the cleaning and other household chores. The relationship sours, and Gina asks Bob to leave. Bob refuses. Gina goes to the magistrate’s office and asks the magistrate to issue an arrest warrant charging Bob with trespassing. Should the magistrate issue the warrant?

The answer depends on whether Bob is a tenant or a guest. If Bob is a tenant, then he may be “evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with” the eviction procedures in Chapter 42 of the General Statutes. G.S. 42-25.6. In other words, as a Georgia court put it, a “person who lawfully occupies property as a tenant cannot be ejectedfrom the property through a prosecution for criminal trespass.”¬†Williams v. State, 583 S.E.2d 172 (Ga. Ct. App. 2003). See also People v. Evans, 516 N.E.2d 817 (Ill. Ct. App. 1 Dist. 1987) (explaining that a tenant must be evicted rather than removed using the trespass statutes).

On the other hand, if Bob is just a long-term guest, then his failure to leave when told to do so is first-degree trespass under G.S. 14-159.12 (defining first-degree trespass to include when a person “without authorization . . . remains . . . [i]n a building of another”).

So, how do we know whether Bob is a tenant or a guest? We know that “[t]he payment of rent is not essential to the creation of a tenancy at will.” Williams, supra. But a tenant must make some regular contribution in exchange for the right to live in the residence. Note that many gracious long-term guests will make regular contributions to their hosts’ households, whether by buying groceries, mowing the lawn, or offering to babysit their hosts’ children. But such contributions do not turn the guests into tenants, any more than a dinner guest becomes a tenant because she brings a bottle of wine to show appreciation for her host. So, if Bob bought groceries and helped clean up because he was trying to be a considerate long-term guest, he was not a tenant. But if the parties — Bob and Gina — viewed the groceries and housework as Bob’s equivalent to rent, then Bob was a tenant.

There will be some cases in which it isn’t really clear whether a person is a guest or a tenant. The best that a magistrate can do it dig into the facts, including the nature and frequency of the contributions made by the person in question as well as any discussions the parties had about rent or tenancy. If that still leaves a murky situation, it may be best to err on the side of caution and use the summary ejectment procedures rather than trespass as a means of getting the person out of the residence.

I’ll conclude by noting that I’m not an expert on landlord-tenant law. Another take on some of these issues appears in this memo by the Charlotte-Mecklenburg Police Department. ¬†Check it out, and if you believe that my analysis above is incorrect or incomplete, please let me know or post a comment.

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5 Responses to “Trespass vs. Ejectment”

  1. This is far too frequent an occurrence. But, the key is if Mr. Boyfriend has “documented proof” of his contributions, meaning, if he receives, or has been receiving, mail at the residence for more than thirty days and, moreover, if paying a bill(s), are there receipts proving such payments were made by him. If that is the case, then he must be evicted. If no proof, then too bad, so sad Mr. Boyfriend, you have a few minutes to gather a few things and make arrangements for a later date to collect the remainder of your belongings, no matter how big or small. As a side note, if Ms. Girlfriend is on a lease which prohibits sub-lessees, she too can be evicted by the landlord, especially if police were summoned to the scene to “referee” the disagreement.

  2. In 2005, more than 5,000,000 couple were cohabitation prior to marriage. Research shows that 80% of these will break up prior to nuptials or get divorced after. This is a new legal issue that will need more codification unless this trend reverses.

  3. Good post. Another related question that I’ve always had problems answering for clients, is what happens if an occupant of the house is “evicted” under a 50B or as a result of an arrest with bond conditions that exclude them from the residence. What are the rights of the occupant to return if the 50B (or the criminal charge) is dismissed months later? In other words, the court order to leave the property is no longer in force and the person that initiated the 50B or warrant is still at the residence and doesn’t want the recently acquited former occupant to move back in.

    Can the former occupant simply return to “their” house, without risking an arrest for domestic criminal trespass? What if the locks are changed? Can they break in? (Let’s assume for sake of argument the former occupant has an ownership interest in the property and would otherwise be entitled to “injure” his own real property.) For what its worth, it doesn’t seem fair that the domestic criminal trespass statute would serve to criminalize a person’s return to their residence, after the person was no longer under any court-ordered restraint to stay away from the property.

    Anyone’s thoughts on this issue would be appreciated.

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    (which arguably would apply once they take up residence elsewhere in obedience to a court-ordered separation from the residence).

  4. A key point to remember is that if Bob Boyfriend comes in at the onset of the tenancy then it can be argued that his legal status is a resident or if he has utilities or other expenses in his name. Without his name on utilities like phone or cable, it is most likely that his contributions are occasional and a trespass order could be warranted

  5. Charles Essary says:

    Respectfully request assistance with the following:
    Girlfriend was an occupant (did not sign lease) and voluntarily left home without notification. She has been gone for three weeks, am I required by law to let her back into the residents?

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