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  1. #1
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    Questions about trespassing

    Can an apartment complex legally trespass a person that a paying tenant is allowing to live in their apartment? I say no because the tenant is PAYING, therefore has rights and an expectation to privacy as any other person living in a house, etc..
    Last edited by iamacop; 05-28-2010 at 01:15 AM.

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    I'm thinking that they can, just because someone is living there that the paying tenant is allowing to live there, doesn't mean the apartment people want them there... Technically, from my point of view, the tenant of the tenant is not a tenant of the complex if they're not on the lease.
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    Well, if they have established residency, we can't just kick them out. You would have to get a legal eviction. Would be nice if there was case law that could clarify this.

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    I work for peanuts. S.O.444's Avatar
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    Quote Originally Posted by iamacop View Post
    Well, if they have established residency, we can't just kick them out. You would have to get a legal eviction. Would be nice if there was case law that could clarify this.
    x2

    Typically if we show up and the person has not established residency, we can CT them and escort them off the property. If they have been living somewhere for a few months and just aren't on a lease, then they must be evicted. When I first started out, we could CT them from the property if they weren't on the lease or paying bills at the location, but the DA's office put a stop to that.

    Also, if a tenant of a tenant is not on the lease, then odds are the original tenant is violating their lease agreement and both of them can be evicted. I make sure to tell folks that when I go on those calls.

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    Also, just to clarify...if an apartment manager wants to CT Warn a tenant's guest they can do so...however the guest is still allowed to come visit their friend as long as they go straight into the apartment and straight out, correct? However, they aren't allowed to go anywhere else....

    Question: I'm a courtesy officer an there is a pool area inside an apartment complex and it is fenced in and secured with a padlock at a certain time at night, and residents and their guests jump over the fence to swim. Would it be okay to make an arrest for criminal trespassing if I catch them inside? I mean a reasonable person knows they are not allowed in the pool if there are pool hours and the gates are locked.

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    Quote Originally Posted by SheepDog911 View Post
    Also, just to clarify...if an apartment manager wants to CT Warn a tenant's guest they can do so...however the guest is still allowed to come visit their friend as long as they go straight into the apartment and straight out, correct? However, they aren't allowed to go anywhere else....

    Question: I'm a courtesy officer an there is a pool area inside an apartment complex and it is fenced in and secured with a padlock at a certain time at night, and residents and their guests jump over the fence to swim. Would it be okay to make an arrest for criminal trespassing if I catch them inside? I mean a reasonable person knows they are not allowed in the pool if there are pool hours and the gates are locked.
    Have the apartment put up "No Trespassing" signs between whatever hours so you'll be covered for sure. I wouldn't see a problem with a CT arrest since the gate is obviously locked and a reasonable person would be able to see that but a sign would be better just to cover yours and the apt.

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    In reference to the OP, eviction would seem the most appropriate action. You could liken it to when a girl has her boyfriend living with her and he's not on the lease. Gf decides she doesn't want Bf living there anymore. As you know, she can't just call the cops and have him thrown out. She has to go through the process of evicting him.

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    Quote Originally Posted by BigTex44 View Post
    Have the apartment put up "No Trespassing" signs between whatever hours so you'll be covered for sure. I wouldn't see a problem with a CT arrest since the gate is obviously locked and a reasonable person would be able to see that but a sign would be better just to cover yours and the apt.
    Well, even with a hour sign, are they still trespassing? The way I look at it is that a tenant is paying interest into the property. They pay their rent, therefore they have the rights and privileges of using the pool, laundromat, etc. Does putting a time restriction on the pool make it legal to arrest somebody who lives within the complex and is provided the amenities of the pool as part of their residency? The only thing they would be violating is a time restriction that the apartment complex is placing. Guess there are arguments for both sides...

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    Just because someone gives somebody a couple of bucks to stay with them in their private apartment doesn't necessarily give them residency. If this was the case then the person they are paying rent to would be running a hotel/motel room and not a apartment and they wouldn't have the correct licensing to run a business, so after explaining this it is generally a lot easier to get people to move on.
    Many of these places have it explicitly listed in their contract that if you aren't on the lease you gotta get out. We have some complexes that have a no visitor policy after certain hours. If a place is secured and you have to hop a fence to get in then you are tresspassing. You may live at the complex but if don't legally have a key then you aren't authorized to be in a locked place. The locked pool area is as much tresspassing as the general maintenace office that is open during the day and locked at night especially when a sign is posted. You can't go in the building if it is locked just because you live there.
    Just like anything it is all about articulation.
    imacop, what is your department policy on it?

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    Quote Originally Posted by iamacop View Post
    Well, if they have established residency, we can't just kick them out. You would have to get a legal eviction. Would be nice if there was case law that could clarify this.
    Case law is really not needed in this situation. It is a civil matter due to their established residency. The owner of the home or apartment would need to contact a JP's office to get the subject evicted. Nothing we can do on our part, other than explain to the people what the law is in regards to residency, and direct them to the proper resources. If they say they live there and the majority of their possessions are in the residence, they legally live there.

    Last year I dealt with a similar scenario:

    Brother 1 signs a lease, and allows brother 2 and brother 2's g/f to move in. Brother 1 does not live in the apartment, as he owns his own home. Fast forward 6 months. Brother 2 gets into a fight with his g/f, and subsequently gets kicked out of brother 1's apartment by brother 2's g/f. Now, you have the ex-g/f of brother 2 living in brother 1's apartment. Keep in mind, that the only person on the lease is brother 1, who has never lived there. Fast forward 2 months. Brother 1 and Brother 2 return to the apartment to kick the ex-g/f out of the apartment. Brother 1 contacts PD, and explains the situation.

    Due to ex-g/f having an established residency at the apartment, she is a resident. This trumps any lease that was signed. She has to be legally evicted now, which is a civil matter. (Thank God for Constable's.)

    To make a long story short, ex-g/f agreed to leave the residence after 2 weeks of packing, Brother 1 goes to jail for failing to register as a sex offender, and brother 2 goes to jail for Assault Fam Violence-Strangulation. Good stuff.

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    Quote Originally Posted by op_06 View Post
    Case law is really not needed in this situation. It is a civil matter due to their established residency. The owner of the home or apartment would need to contact a JP's office to get the subject evicted. Nothing we can do on our part, other than explain to the people what the law is in regards to residency, and direct them to the proper resources. If they say they live there and the majority of their possessions are in the residence, they legally live there.

    Last year I dealt with a similar scenario:

    Brother 1 signs a lease, and allows brother 2 and brother 2's g/f to move in. Brother 1 does not live in the apartment, as he owns his own home. Fast forward 6 months. Brother 2 gets into a fight with his g/f, and subsequently gets kicked out of brother 1's apartment by brother 2's g/f. Now, you have the ex-g/f of brother 2 living in brother 1's apartment. Keep in mind, that the only person on the lease is brother 1, who has never lived there. Fast forward 2 months. Brother 1 and Brother 2 return to the apartment to kick the ex-g/f out of the apartment. Brother 1 contacts PD, and explains the situation.

    Due to ex-g/f having an established residency at the apartment, she is a resident. This trumps any lease that was signed. She has to be legally evicted now, which is a civil matter. (Thank God for Constable's.)
    Well, put. Good example.

    Quote Originally Posted by op_06 View Post
    To make a long story short, ex-g/f agreed to leave the residence after 2 weeks of packing, Brother 1 goes to jail for failing to register as a sex offender, and brother 2 goes to jail for Assault Fam Violence-Strangulation. Good stuff.
    I love a happy ending.

  12. #12
    Go on, touch it... JSD73's Avatar
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    Despite the civil matter portion, the other question is, is the apartment management willing to pursue criminal charges, cause if they ain't trespass at the pool or on the complex means nothing.

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    Ahh that makes sense about arresting for criminal trespass. The pool is definitely locked and secured and there are pool hours posted. I wouldn't work for this complex if the managers weren't willing to do their part to make the complex a safer place by prosecuting. Thanks for the help and insight fellas.

  14. #14
    I work for peanuts. S.O.444's Avatar
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    Quote Originally Posted by SheepDog911 View Post
    Also, just to clarify...if an apartment manager wants to CT Warn a tenant's guest they can do so...however the guest is still allowed to come visit their friend as long as they go straight into the apartment and straight out, correct? However, they aren't allowed to go anywhere else....

    Question: I'm a courtesy officer an there is a pool area inside an apartment complex and it is fenced in and secured with a padlock at a certain time at night, and residents and their guests jump over the fence to swim. Would it be okay to make an arrest for criminal trespassing if I catch them inside? I mean a reasonable person knows they are not allowed in the pool if there are pool hours and the gates are locked.
    I am also a courtesy officer at an apartment complex. Unless you have enough signs to reasonable articulate that they were previously warned against entry, I would be VERY hesitant to hook anyone up for CT, especially a resident of the complex. There are times that I lock the pool and just have to go back a few hours later to unlock it and kick people out for being in it after hours. Yes, it's a pain in the butt, but it is a civil problem. That being said, if they are a resident of the complex, the only thing I can do is get their apartment number and their name and notify the manager about their violation of the lease agreement. If the person refuses to give their name or apartment number, then I can only assume that they are not a tenant and are trespassing and demand their information on police authority. I have a current list of tenants handy and if they are not on it or refuse to ID, then I can only assume that they are trespassing. At that time, I will call dispatch and request uniformed officers to assist. If the situation deems necessary to call a supervisor after the arrival of a uniformed officer, then that is at the discretion of the uniformed officer.

    Unfortunately, the way that current Texas Penal Code is worded regarding Failure to Identify, if someone doesn't want to give their name, address, or DOB when we have them detained, we cannot arrest them for failure to identify. My best advice is to have them criminally trespassed on your authority as a courtesy officer from the complex, log the criminal trespass warning with dispatch as John Doe with a date of birth as 1/1/XX (nearest year that you can guess), and take a picture of the perp (preferably with a time and date stamp) before they are escorted off the property. If they show back up, be sure to have that photo available to take to court for the trial.

    That is just how I would handle things in my jurisdiction. I would have to check with the DA's office to get clarification on what they would need, but that is how I would handle it if I came across that situation at this very point in time.

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    Quote Originally Posted by S.O.444 View Post
    Unless you have enough signs to reasonable articulate that they were previously warned against entry, I would be VERY hesitant to hook anyone up for CT, especially a resident of the complex.
    +1

    We have criminal trespass affidavits on file with a few of our problematic apartment complexes in town. The majority of the issues stem from non-residents, but the affidavits give us the legal authority to stop and ID ANYONE out walking about inside the complex. Dispatch keeps an update resident list, sorted by name, as well as by apt. number.

    One complex in particular is a HUD complex, and is *THE* place to be. This leads to numerous DOC calls and civil disturbance calls a week. The affidavit allows us to arrest the people who are non-residents and are just wondering around the complex. There are signs posted at the two walk-in gates to the complex, as well as the two drive in access points stating the rules. All visitors MUST be accompanied by tenants. They are only allowed to walk to the residence, and back out to their vehicles. The residents are not allowed to be out after 10pm and are not allowed to walk around in groups larger than 3 people.

    The last 2 items are civil infractions. These violations are reported to the apt. management, which goes towards strikes against their lease and eventual eviction.

    The visitor/non-visitor allows us to enforce the criminal aspect of CT to those who choose to wonder around the complex and hang out.

    The affidavit has not been in effect very long, and has already reduced our agencies call volume at this particular complex.

  16. #16
    Go on, touch it... JSD73's Avatar
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    Quote Originally Posted by S.O.444 View Post
    I am also a courtesy officer at an apartment complex. Unless you have enough signs to reasonable articulate that they were previously warned against entry, I would be VERY hesitant to hook anyone up for CT, especially a resident of the complex. There are times that I lock the pool and just have to go back a few hours later to unlock it and kick people out for being in it after hours. Yes, it's a pain in the butt, but it is a civil problem. That being said, if they are a resident of the complex, the only thing I can do is get their apartment number and their name and notify the manager about their violation of the lease agreement. If the person refuses to give their name or apartment number, then I can only assume that they are not a tenant and are trespassing and demand their information on police authority. I have a current list of tenants handy and if they are not on it or refuse to ID, then I can only assume that they are trespassing. At that time, I will call dispatch and request uniformed officers to assist. If the situation deems necessary to call a supervisor after the arrival of a uniformed officer, then that is at the discretion of the uniformed officer.

    Unfortunately, the way that current Texas Penal Code is worded regarding Failure to Identify, if someone doesn't want to give their name, address, or DOB when we have them detained, we cannot arrest them for failure to identify. My best advice is to have them criminally trespassed on your authority as a courtesy officer from the complex, log the criminal trespass warning with dispatch as John Doe with a date of birth as 1/1/XX (nearest year that you can guess), and take a picture of the perp (preferably with a time and date stamp) before they are escorted off the property. If they show back up, be sure to have that photo available to take to court for the trial.

    That is just how I would handle things in my jurisdiction. I would have to check with the DA's office to get clarification on what they would need, but that is how I would handle it if I came across that situation at this very point in time.
    Yeah, they really screwed the fail to id statute up a bit didn't they.

  17. #17
    I work for peanuts. S.O.444's Avatar
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    Quote Originally Posted by JSD73 View Post
    Yeah, they really screwed the fail to id statute up a bit didn't they.
    Indeed. But, we've got a whole lot of other things that we can use to instanter on if the situation calls for it. Release them from the scene and then watch them walk away. Odds are that before they get too far away, they'll jaywalk across the street or throw down a cigarette or something. Hook them for it, get their correct info, and have dispatch enter the CT under the correct name. Creativity is becoming a lost art.

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    Quote Originally Posted by S.O.444 View Post
    I am also a courtesy officer at an apartment complex. Unless you have enough signs to reasonable articulate that they were previously warned against entry, I would be VERY hesitant to hook anyone up for CT, especially a resident of the complex. There are times that I lock the pool and just have to go back a few hours later to unlock it and kick people out for being in it after hours. Yes, it's a pain in the butt, but it is a civil problem. That being said, if they are a resident of the complex, the only thing I can do is get their apartment number and their name and notify the manager about their violation of the lease agreement. If the person refuses to give their name or apartment number, then I can only assume that they are not a tenant and are trespassing and demand their information on police authority. I have a current list of tenants handy and if they are not on it or refuse to ID, then I can only assume that they are trespassing. At that time, I will call dispatch and request uniformed officers to assist. If the situation deems necessary to call a supervisor after the arrival of a uniformed officer, then that is at the discretion of the uniformed officer.

    Unfortunately, the way that current Texas Penal Code is worded regarding Failure to Identify, if someone doesn't want to give their name, address, or DOB when we have them detained, we cannot arrest them for failure to identify. My best advice is to have them criminally trespassed on your authority as a courtesy officer from the complex, log the criminal trespass warning with dispatch as John Doe with a date of birth as 1/1/XX (nearest year that you can guess), and take a picture of the perp (preferably with a time and date stamp) before they are escorted off the property. If they show back up, be sure to have that photo available to take to court for the trial.

    That is just how I would handle things in my jurisdiction. I would have to check with the DA's office to get clarification on what they would need, but that is how I would handle it if I came across that situation at this very point in time.

    I see where you're coming from, but as stated previously...what is the difference between the office and computer room at the complex which has the hours posted and is locked at night and the pool area which has the hours and is also locked at night? Any reasonable person who sees an area locked with the hours posted would know not to enter that area.

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    I believe you could arrest for the criminal trespass at the pool. The locked up fenced in area is all that is required by penal code to establish the criminal trespass charge. Signs would definitely help in the prosecution of the charge.

    Criminal trespassing someone in an apartment complex can be done, if they are not on the lease, even if they have established legal residency in the complex by moving in with someone. The criminal trespass only covers the common areas of the apartment complex. So you can give the criminal trespass warning to the individual if he is not accompanied by a resident on a lease. That doesn't prevent them from being inside the residence. If they want the ability to hang out in the parking lot and breezeways, they need to get added to the lease.

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    Quote Originally Posted by SheepDog911 View Post
    I see where you're coming from, but as stated previously...what is the difference between the office and computer room at the complex which has the hours posted and is locked at night and the pool area which has the hours and is also locked at night? Any reasonable person who sees an area locked with the hours posted would know not to enter that area.
    At this point in time, my complex doesn't have the pool hours or a complete list of the pool rules listed on or around the pool. It's listed in the lease agreement but you have to really search for it.

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    My complex is fairly new...they have the rules on a sign but not the hours yet. So I had to request management to order a sign with the pool hours listed. They said it is supposed to come in Tuesday, so once the hours are posted and the locks are in place after 2300 hrs, it seems like fair game. So far I've been using p.i for my arrests.

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    Quote Originally Posted by iamacop View Post
    Can an apartment complex legally trespass a person that a paying tenant is allowing to live in their apartment? I say no because the tenant is PAYING, therefore has rights and an expectation to privacy as any other person living in a house, etc..
    You would be correct. Do not be trying to CTW or arrest someone for CT in this situation. It is absolutely 100% civil.

    We deal with this all the time. If the 3rd party has established residency at an apartment in which they are not listed on the lease, it is still their residence and they have to be evicted. It is an issue the apartment manager has to take up with the actual leaser. They can resolve it by a mutual agreement that the 3rd party move out voluntarily, or the management can evict them. Legally this is no different than a guy renting an apartment, his girlfriend moves in, lives there for a year, makes it her home, gets mail there, has her DL there, then the apartment admin finds out she is there and wants her out. Tough, it's her home. They have to evict. We have absolutely no involvement in this matter until an eviction has been issued by a court and the eviction date has passed without compliance.

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    You can't trespass the person from the residence, but you can trespass them from the common areas in the apartment complex. Dallas started a program about a year ago dealing with apartments giving officers the ability to issue CTW's for the common areas of apartments. We have been getting convictions on people arrested for it that are not on a lease regularly. We also have to regularly tell the management, that if the guy they have CTW'ed is with a resident of the complex. that is on a lease we can't arrest them. Most apartment complexes have gotten real good about filing lease violations or evictions on tenants that let people stay that aren't on the lease.

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    Forum Member shlsmv's Avatar
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    CT dont expire correct?

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    Quote Originally Posted by shlsmv View Post
    CT dont expire correct?

    Not by statute, but probably by DA! Ours in Waco won't prosecute one older than 1 year.
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