Landlords, Tenants, and Trespassers

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).