Trespass vs. Ejectment

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.