Trespass vs. Ejectment

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

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.

11 comments on “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.

    The

    (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. 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?

  6. She has given nothing but I am the Social Security Disability Payee and have allowed her to use my address for mail purposes. I was smart enough to make sure she had a legal address in another location although and of course she insists on staying. Any other comments? I know I need an attorney and that eventually someday soon this underprivileged person will end up living under a bridge but she won’t even clean so I need to man up and close my heart to this woman. Do I need a lawyer? I’ve documented most through the SSI office and am very good with law but I don’t want to f this up by playing lawyer if I shouldn’t?

  7. Here is my situation. I live in NC and Mt girlfriend and I do not get along do to her drinking problem. She got a dwi and didn’t work or help with the bills for over a year. She just started working and has only paid 40.00 on the electric bill sense she has been back to work. I am the home owner and have been paying ALL the bills and for the last 7 months I have been doing it on a fixed income after a bad accident ending in 2 broken legs. Her name is NOT on any of the utilities or the morgage. We have been together for 4 and living together for 3. We do NOT sleep in the same bed and the other factor is that she has 2 children that are involve. Please can someone tell me how to go about this. The worse thing is that she can get very violent and my biggest fear is the she will tear up the house in a rage. Please someone tell me how to go about this with out it getting g ugly in front of the kids.

  8. Some days ago I got an eviction notice ,
    For trespassing in Columbia county Ga.
    I here visiting my fionce – there had been long term arrangements , because I need tp fly over from Berlin Germany/ ….that means that I am here for the 3rd time since 2014,(I came here each year and visit my fionce who himself sold his mobile home to move in with his mother in 2014. We payed the utillitit together and all the chores I did ,because he is disabled with Epilepsi .his mother is terrorizing is since day one I came here /further stalking us ,offend and assaulted both of us ,the police had been out here 6 times and did nothing(they get tired of coming out )!
    So I really had other plans in my spare 88 days I can spent with my fionce then going into this legal battle now and so she tries to keep me from coming back to the states …by filing a eviction with the trespassing reason…my fionce moved in with her under no conditions of paying rent and there is much more to add but I won’t go in deeper .
    Thank you for this article ., it gave me as. Foreigner some good information.
    I never thought in my wildest dreams to meet a narcistist woman in my life and being forced in issues I have nothing to do with in first place ….so this time was a lesson in American law to me and I will take it as a useful experience but my vAcation with my fionce ,is ruined and we only see each other ones a year

  9. I have similar problem. My sperm donor asked my wife and I to “move in to help me out” as he was in a surgery rehab center and has many other health related issues. We gave up our place we had had less than two months to move in with him as well as my wife discontinued her search for another job as getting it back to a somewhat reasonable state of health was her number one priority. Landlord was very understanding of medical issues) I am not in good physical condition myself so in my marriage I have been in the role of “house husband.” After my sperm donor began feeling better he began to become demanding of my wife and became belligerent, an issue I was concerned about before we moved in as he had done that to my mama for 45 years. My wife did not seem to think he would do that. He told her several times that “you don’t do anything but sit on your ass,” and has told her as such in front of others and I have audio proof of such. He has accused her of stealing his cigarettes among other things. He is a severe diabetic and my wife worked hard to get it under control. He was down to under 200 average and the doctor was very happy with that. (Long story but he decided do it himself and has many bs readings over 500 now with an average of close to 400) As a result of his snapping at, barking at, and general belligerence toward my wife he and I had a major argument where as he told me to get out but that my wife could stay. (Tried to split us apart and use a roof as bait for her, didn’t work) Since he asked us to “move in…” last October we have provided all the food and the cable bill was in our name until we could no longer afford it with the little income we had. I cooked dinner at least 28 days a month including plating and serving it to him at his seat in the living room. A few weeks later he all but called me a liar and resulted in another argument after which he filed a protection order against me and had me thrown out in the street until the court date. I have never once raised my hands to him nor threatened him in any way. My wife had just started her current job and needed a place to sleep and shower so I was okay with her staying there until that time. In court he actually admitted that he was trying to use the order to circumvent the eviction process and the judge told him that a family argument did not rise to needing a protection order and that if he wanted me out “you will have to follow the proper eviction process.” The day after having me thrown in the street sperm donor had audacity to ask my wife to actually do something for him. Sperm donor then proceeded to attempt to evict us by claiming “criminal activity” in the home by way of verbal abuse. There also was no notice to vacate given. Case was dismissed but then magistrate started telling him that we were guest and give us seven days and then file trespassing charges. In short he has now filed those charges, had my wife and I arrested, cost us 150 dollars in bond money, 55 dollars cab fare home after bad eviction attempt, 15 dollars in gas to a friend for a ride home after bogus abuse order attempt, 20 dollars in additional food as when we were arrested we could not return to get any of our food or even a change of clothes until the next day and only with law enforcement escort. We are currently staying with a new friend that is costing us another 200 in temporary lodging as well as the 75 in temporary lodging when he filed the bogus abuse order attempt. After the first argument when things cooled down my wife reminded him that he asked us to “move in…” and asked him if he wanted us out then he needed to give her time to find a job (again she had not been looking because she was devoting a huge amount of time to helping him) and save to move out. I also have audio proof of him agreeing to do as such. As we have an established residency, have lived there for nine months, the cable bill was in our name, our beds are there(one in the spare room) our couch and double recliner is there, our entertainment center, television, fishing gear, my sports cards, desk, dishes, pots and pans, all of our clothes, night stands, etc. are all there. Plus the fact that we were asked to “move in…”, gave up our place, my wife put her job search on hold to take care of him leaving us with little to zero income, purchased all the food and cooked it and cleaned the house, did his laundry, my wife set up his medications and handled his MANY doctors appts and theoretically saved his life twice as one night his sugar dropped and I heard a strange sound. His sugar dropped to 12 in the ambulance and if not for us being there he could never have dialed 911. My wife fought and bugged the surgeon to get him in to repair aneurism that had reached critical mass that if not for her would have never known it had grown etc. We are trying like hell to get out but it takes money. We have oral agreement until we were able to save and find a place and I have proof of that. But now his shenanigans have cost us pretty much all we had saved and still have court for trespass on the 30th. He has also run his mouth about this for no reason to my wife’s ex with whom we are also involved in a custody battle and not knowing the full situation he will attempt to use it against my wife. That was last straw for her and even after all he has said to and accused her of she has bitten her tongue. She finally told him the truth that he was an arrogant, selfish, indignacious, self centered son of a bitch. To push my wife (who is by far the most loving woman I have ever known next to my mama and sperm donor has sad she is just like my mama and I have proof of that too) that far you have to be some kind if real a@&hole. My sister stayed with him for a few months to help out but even she left because of his arrogance, selfishness, and belligerence. 1) Do I have a case to sue for breach of contract for more than he has already cost us to obtain enough to get a place and 2) Do I have a legal civil or criminal case against him for the bogus attempted abuse order since he admitted he was trying to circumvent the eviction process. 3) Can I press any kind of charges for the bogus trespass arrest when he was told by the judge in the abuse order case that he needed to follow the eviction process and 4) The magistrate that has erroneously told him that we are just guest and followed her instructions from the bench, do I have any recourse against her. Any help or advice that could point us in the right direction or at the least point us to which statute to look at would be helpful. We are in Onslow county NC. Will not listen to deputy sheriff as at least 4 times now they have told me/us XYZ and I know better and even looked it up to be sure. Most recently the dumb idiot at the jail house the night of the arrest telling me there was no such thing as GS-42. Statute, chapter, what does this idiot think he filed eviction under and in the same statute I got it dismissed.

  10. Do all these same rules apply if Gina Girlfriend has a lease to an apartment which is public housing?

    • Because what ive read about NC law states that all rights are pretty much parallel. Please help. I was just ejected by police after living there a year.

Leave a Reply

Your email address will not be published. Required fields are marked *

Please complete for security measures: (required)