Landlords, Tenants, and Trespassers

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First off, sorry I didn’t post yesterday. I was laid up with food poisoning — I blame holiday leftovers! I’m much better today, so on to today’s topic, which is really recurrent.

Suppose that a landlord tells the friend of a tenant that the friend can’t come on the property owned by the landlord but leased by the tenant. Perhaps the landlord thinks that the friend instigates too many loud, raucous parties that end up in property damage. Or perhaps the landlord thinks that the friend is living with the tenant, thereby increasing wear and tear on the property, without paying rent. For whatever reason, the landlord tells the friend to stay away . . . but the tenant invites the friend back onto the property. Is the friend trespassing if he or she returns to the property?

Generally, no. In State v. Lawson, 101 N.C. 717 (1888), Thomas told Lawson to stay off Thomas’s land. But Thomas leased the land to Nelson, who invited Lawson onto the property for a chat. Thomas then prosecuted Lawson for trespassing. (As a historical aside, it appears that Thomas did so as a private prosecutor at the trial level.) Lawson’s defense was that he was invited by Nelson, and he asked that the jury be instructed “that, Nelson being a tenant on Thomas’ land, if he invited and permitted the defendant to enter on the land cultivated by him, though belonging to Thomas, the defendant would not be guilty.” The trial court declined Lawson’s request, effectively holding that the landlord’s right to exclude Lawson trumped the tenant’s right to invite him.

The North Carolina Supreme Court reversed, holding that Nelson was rightfully in possession of the property, and so had the right “to invite such persons as his business, interest, or pleasure might suggest to come upon the premises . . . for any lawful purpose.” The rule of Lawson – that the tenant’s right to invite is superior to the landlord’s right to exclude – is the law in most, if not all, jurisdictions. See, e.g., State v. Dixon, 725 A.2d 920 (Vt. 1999) (“The common law is clear that the landlord may not prevent invitees or licensees of the tenant from entering the tenant’s premises by passing through the common area.”); L.D.L. v. State, 569 So.2d 1310 (Fla. Ct. App. 1 Dist. 1990) (“A landlord generally does not have the right to deny entry to persons a tenant has invited to come onto his property.”). It’s also consistent with the rule that a landlord may be prosecuted for trespassing on the tenant’s leasehold. And it’s in keeping with the rule, in the Fourth Amendment context, that the tenant, not the landlord, is the party entitled to give or to withhold consent to search. Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003). So Lawson is on solid ground.

But let’s make things more complicated. Think about a tenant who lives in an apartment complex. If the landlord tells the tenant’s friend to stay away, but the tenant invites the friend onto the property, can the friend be arrested as he crosses the common area of the property en route to the tenant’s apartment? One might argue that the common areas remain in possession of the landlord, and so the landlord has the right to control who enters those areas. Courts have not generally been receptive to that argument. See, e.g., Dixon, supra; L.D.L., supra (stating that right of tenants to invite visitors “also applies to the common areas of the premises”); Commonwealth v. Richardson, 48 N.E.2d 678 (Mass. 1943) (holding that landlords implicitly give tenants, and their invitees, the right to pass through common areas of the property as necessary to access the tenants’ homes). However, a tenant’s invitee, if told by the landlord to stay away, likely may use the common areas only as necessary for access to the tenant’s residence. See City of Bremerton v. Widell, 51 P.3d 733 (Wash. 2002) (“An invited visitor may proceed only through those common areas necessary for ingress and egress from the tenant’s unit . . . [but] may not proceed at will to a part of the premises wholly disconnected to the purpose of the invitation and use the invitation as a defense to a charge of criminal trespass.”).

Let’s add one more wrinkle. Suppose that the lease provides that the landlord retains the right to forbid trespassers from entering the property. Is such a provision valid? Can a trespass conviction against the tenant’s friend now be sustained? Lawson suggests that the answer is yes. The court there emphasized the “absence of any evidence to show that there were restrictions upon [Nelson’s] tenancy” that limited his right to invite visitors, 101 N.C. at 717, suggesting that such limitations would be permitted and would change the outcome of the case. Other cases, from other jurisdictions, contain similar suggestions, though there is a dearth of authority directly on point. I should add two caveats here. First, even if the landlord has retained the right to forbid trespassers, if that fact is not made known to the trespasser, Lawson suggests that the trespasser’s conduct may be insufficiently willful to support a conviction. And second, whether the landlord may reserve the right to forbid trespassers appears to be a complicated question in the public housing context, where federal law may limit the provisions that can be included in a lease. See generally Elena Goldstein, Note, Kept Out: Responding to Public Housing No Trespass Policies, 38 Harv. Civ. R. Civ. Lib. L. Rev. 215 (2003).

34 comments on “Landlords, Tenants, and Trespassers

  1. IF A MAN DATES AND LIVES WITH A WOMAN IN HER HOME, EITHER AS BOYFRIEND AND GIRLFRIEND, OR AS THOUGH MARRIED, AND ALTHOUGH HIS NAME IS NOT ON THE LEASE, IS THE WOMAN REQUIRED TO GIVE HIM 30 DAYS NOTICE BEFORE SHE CAN DEMAND HE LEAVE “HER” HOUSE?

    • I believe that the answer depends on whether the man has effectively become a tenant, by virtue of paying rent or the equivalent. However, this is a civil law question beyond the scope of my expertise. At the School of Government, the person who is an expert on this issue is Dona Lewandowski, whose profile and contact information are here: http://www.sog.unc.edu/about/directory/lewandowski.html

    • The only person who has a RIGHT to be there is the owner of the property, or one who has a landlord / tenant relationship with said owner of the property. Just because a woman allows a man to live in the rented property does not give him a landlord / tenant relationship with the OWNER. So, no, he does not have to be evicted. Leave, or be arrested.

      • Unless the boyfriend or girlfriend was on the lease, you can try to remove them as a lodger and not a tenant, lodgers do not have to be evicted, they can be told to leave and can be forced by law enforcement to leave without court or notice.

        I just did this with an ex-friend of mine who refused to get a job, they were removed from property given a trespass warning, they then tried to sue, and I won that case.

  2. Question:Can the trial court use the same felony convictions to apply the three strikes rule?
    For instance,One County uses the same convictions that the other County used to declare a habitual status.So the defendant ends up with 2 habitual status felonies from 2 Counties ?Is this possible?Or rather lawful?

  3. Suppose that the lease provides that the Landlord retains the right to forbid trespassers from entering the property.In case of a warrant less search,and the tenant gives consent for entry,does the landlord have an upper hand and final say ,and consider that trespassing?

    • Unless the landlord has actually exercised — not merely retained — the right to forbid the officer from entering, I don’t think so.

  4. Suppose the renter lives in a public housing developmetn and local police have previously informed an invited guest of a renter that he can no longer enter the premises. Trespassing?

    • If he has been banned from public housing, yes.

      • Joel,

        Can you tell me some authority for this? Is there always a right for local police to ban persons from public housing, or is it dependent on a lease allowing the “landlord” to exclude certain persons?

        Thanks, Chris

  5. I, the property owner/father, have two sons living in the residence. I have a rental agreement with one son. If the son that has the agreement with me, does the other son who does not have the agreement have the right to invite other people to move in and live in the house? If so, what could I do to get the people that the son without the agreement invited out of my house?

  6. I gave a notice of leaving after 9 years for July 15, 2010. Due to work needing to be done at my home. I notified landlords 5 years ago of needed repairs. They said they would get to it as soon as they could. Now since I am leaving they cannot rerent the house in its condition. So, major repairs are being done while I and my daughter and newborn grandson are still here. Only on weekends. Are lives are being disrupted and I get no knowledge of them coming. I now have no screens and walls are being hammered on in the weekend mornings. They spray painted the house with my 2008 vehicle next to it. I had to have it buffed out. I am lost and do not know where to go. I work many hours and my daughter works nights on weekends. We cannot sleep. I need it to stop til we move out. Any help? Thank you, Jaimie

  7. Hi,

    A relative of mine who lives in Charlotte, NC, was involved in an abusive relationship in which she and her partner lived together in a property she owned.

    Her partner (in addition to the abuse) stopped paying her share of the mortgage and refused to move. The Charlotte police advised my relative that it would be next to impossible to force her partner out of the property through eviction because she was an “invited guest.”

    My relative took the policeman’s advice (without pursuing the matter with an attorney) a let the bank foreclose on the property as a final resort for severing her ties with her former domestic partner.

    Did the Police Officer provide my cousin an accurate assessment of NC law? Is an “invited guest” nearly impossible to remove?

    Thanks for any response you can provide.

    Sincerely,

    Ben Thompson.

  8. I live in a NC section 8 housing and my boyfriend moved in on me…I didnt ask or help him, but didnt know I could stop him…he was homeless and we have children…I have asked him to leave on several occations and he wont pay the rent if he goes on my lease which will leave me with no place to live. He isnt suppose to be here and if I tell them I loose everything…we fight and argue all the time. The police say they cant make him leave and I cant give him a 30 day notice…my landlord has to but they dont know he is living here…and I’ll loose everything if they find out. I have 5 children and need to be here..he has a job and wont leave. I cant afford to move, the other apartments are too small and I cant afford the deposit or moving expence. I dont know what to do. If I get my landlord to give him a no trespassing notice, they have to have his home address. So, I am at a loss.

  9. If a private investigator come to the apartment complex which I rent a unit and placed a GPS Tracking Device on my car in an intent to track my movements without my consent, is my lanbdlord required by law to prosecute the investigator for trespassing if I report the incident?

    Please keep in mind that the apartment complex is a gated community and has signs that reads “Private Property, No trespassing, No Soliciting”.

    Thank you.

  10. I just want to know can a landlord go and look at my personal things in my
    apt, such as in closets and medicine cabinets to look for unauthorized occupants and they want to count beds I think this is wrong. this is like back in the 50s Don’t I have any rights. I think I made a mistake moving to NC .

  11. Okay, my question is a little similar, a little different. What if a tenant is renting a property and the landlord comes on to the land whenever he feels like it and tampers with things or does things he has no right doing. He was not invited by the tenant and is not wanted on the property unless it’s to collect the rent on rent day in which case the tenant gives a 24 hour notice to let the landlord know what time they can pick up the rent and of which day. Does the tenant have the right to charge the landlord with tres passing?

  12. this has nothing to do with people but with a vehicle. my landlord told me i could move a vehicle off the land(a junk vehicle a old tenant left} and now she claims she doesnt remember tellng me. what can she do?

  13. I have been told it is legal for a Landlord to refuse to rent to a person with a Criminal Record. Is this true?

  14. I have a sister that is in the NC HUD program. Her landlord accepted to rent under the program at the price that was allowed for her. The landlord then came to her with his own contract for more rent. This was as she was moving her and her children in the home. Caught off guard and in need of this house she signed it. Thinking if she didn’t her and the 2 children would have no where to go. They asked for another $160 a month in addition to the amount HUD was paying the landlord. She payed this for 10 months not understanding if they had the right to do this to her. After she received disability and HUD readjusted her monthly rent. The landlord came with a new contract for the difference that HUD wouldn’t pay any longer. After talking with others she told them no.
    Did the landlord have the right to do this after signing the agreement with HUD and what should she do now that she doesn’t fill this is right?
    Now they have taken out an eviction papers for civil court to handle. The male landlord is also harassing and verbalizing her at the home around the children. From my county the renters my father had in a house took out a restraining order on him and he wasn’t allowed to set foot on the property until it went in front of the judge to evict them. When she call the local sheriff and they came out. They told her he has the right to be there any time he wants. Also the Sheriff that came out told her that if she did try to take out a restraining order on him she wouldn’t get one. This is in a different County of NC and a small nit County. They spoke to the landlord before talking with her to find out why she called. It sounds to me they are not telling her the law correctly!
    What steps can she take to feel safe while there alone?
    The landlord is holding a check for the 2months she paid in advance to cover her through Christmas. She is worried that they are holding it to show that she hasn’t paid and that is why they are evicting her. But, they are under the HUD agreement now.
    What is the best thing for her to do?

  15. If a tenant quits paying rent and refuses to pay even after a 5-day notice to pay or quit was issued to him. Is he a trespasser after that? What about his girlfriend, who is not on the lease?

    The girlfriend was given a notice that her boyfriend is on the property unlawfully and that she is too. Still, she did not move.

  16. I had a heartattack in NC. I went to MD to have 2 stints put in. I have a valid NC licence and the woman I have my car and personnel belongings I was living with said it is hers. I have dr notes to say Im up here.can I get my stuff with out going to court

  17. need to know before I take her to court. Im homeless and a veteran and just want my stuff back

  18. I lived with my boyfriend for 4 months. I went to Maryland for a family event and when I came back I was at the house that I rented (in VA with my son) and was told by boyfriend to stay there for a few days because of bad weather that was due to come on. That ended up turning into a week and a half. Long story short, he said that things weren’t working out and we ended our relationship. I had gone over once and gotten some of my things. He was to bring the rest back over to me (in VA) a week later. That has turned into 2 weeks as of now. He has made a statement to me of possibly putting the remainder my things out on the street. Can he legally do that? What are my legal rights concerning getting my things back as well as what I am able to do if he puts them out on the street?

  19. I recently took my boyfriend off my apartment lease is there any way for me to put him back on??

  20. My grandfather purchased land with a friend over 35 years ago. His friend is no longer living but his son inherited his fathers share of the land but took out a personal loan as collateral and it defaulted. Can legal action be taken and a foreclosure be placed on their joint land? My grandfather has not visited the land in the North Carolina mountains in 20 years. I am not sure if this is considered abandon property, but he recently went to visit and noticed that someone has built and is currently living on his land. He has the deed for the land. Can he prosecute the people living on his land? We are unsure how and why he was able build and arrange utilities on someone else’s land.

  21. I know of a person living in subsidized housing and has gotten several arrest while living here…. Can you be evicted for that

    • If it constantly disrupts your neighbors to the point where there are complaints, and there are certain noise disturbance rules placed, then yes, you can be evicted. However, if you have paid your rent on time, it will be difficult for the judge to decide that you ‘no longer have the right to live there’ unless the housing has records, witnesses, and photographs. Eviction is a costly and time consuming process so it would have to be worth it for the landlord.

  22. I have a situation where a young couple down on their luck were offered to stay in !y home for an indefinite period of time. They moved into the finished basemet of my home and paid no rent. There was no agreement for them yo pay rent. The agreement ( verbal though it was) was that they would do some minor repairs around my home in exchange for living tent free. They did no work and after 2 months I asked them to leave. I gave them a week to remove themselves as they had moved in on a two days notice two months earlier. I also knew that they would move back in with his parents whom they had lived with prior to living with me. There was no hardship involved other than the discomfort of having to pack and move. She kept insisting I should have given them 30 days and that she was legally entitled to it. I had no lease with her nor did I ask for or accept money from her during the course of her stay. In fact she borrowed money from both myself and my adult daughter who also lives in my home. I am curious after reading all these rules whether I indeed was obligated to give a 30 day notice to someone I was doing a favor and took heinous advantage of me.

  23. My name has recently came up on a waiting list for private section 8 (income based) apartments. I have a couple evictions on my rental history. Will this keep me from getting approved for the apartment? I would think not being that the program is to stabilize families. If you ask me I should be approved from that alone. That shows I really need the program.

    • It might. When they run your name for approval, they run your entire background (credit, eviction, and criminal history) to see if you are at-risk. However, because it is Section 8, they might be more lenient because of what Section 8 is promoting & of your particular history/situation.

      It will vary from program to program but you can always call in and inquire about the screening process.

  24. My question is if John invites Chris to live with him and two other roommates john and the other 2 tenants being on a lease, and Chris stays and pays rent for 4 months and in month 5 the landlord tells the leaseholder that Chris has to leave by the end of the day on no grounds for eviction does Chris have to be gone by the end of the day or is the landlord have an empty threat?

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