1. #1
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    trespassing at an apartment complex/legal issue

    This issue came up at work the other day and no one seems to have a clear answer...

    Practice: We are often called to apartment complexes owned by private companies or individuals and are asked by the owner/manager to issue "trespass notices" to people they do not want to return to the property. It is a given that persons who are on a lease cannot be placed on notice since we have eviction process that needs to be followed by the owner/manager, but...

    Here's the issue(s):

    1) What about people who are not on the lease, but have moved in with someone that has a lease. Can they legally be put on "trespass notice"?

    2) What about people that are invited guests of leaseholders?

    In this state (SC), there is no firm definition of "legal residence." It is determined by totality of circumstances, such as amount and type of belongings they have with them, do they get mail there, what was nature of their stay, do they have a key, can they come and go as they please, what was nature of original agreement with host (did host agree to a couple of days vs. indefinitely), is money paid to host, etc.

    The attitude of my command staff is "if the property owner/manager requests a trespass notice, then we do one." I am concerned b/c we (the PD) are the one actually issuing the notice on one of our forms and we are the ones that will be arresting the person once they return. I see liability if we put someone on notice that could be considered a "resident" even though they are not on a lease, or an invited guest that has a right(?) to visit a leaseholder.

    I have tried looking for some case law from SC Supreme Court, the federal 4th Circuit, and the USSC, but the closest I can find deals with public housing complexes (which they hold that people in public owned complexes do have a right to have guests and visitors, but police/managers may trespass notice people whom they arrest and/or are being violent or destructive on the property, and even then they can travel directly to their host's unit and back and not be trespassing after notice).

    What do you guys think? Anybody know of any case law that relates? BTW, we do not have a written policy regarding this, so if you do, I would be curious as to how it addresses the issue.

    Thanks in advance for any responses.

  2. #2
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    In VT a trespass charge can not be made by a landlord on the legal resident nor someone invited by the resident to live there or visit. Likewise, if the legal resident invites someone to stay with them and such person is now "living" at the residence (no specific time frame but can be proven by numerous means) the resident can not seek a trespass charge at that point either. This works out that a Trespass Order is thus not valid and we would not issue in either instance.
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  3. #3
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    Get a "legal opinion" from your city attorney or state attorney. They have better resources and methods of searching case law than your average LEO.

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    No and No!

    1) once residence has been established its whoever wants them out the house/apartments problem. they would have to evict that person and I guess it would be a good idea to evict whoever was on the lease allowing them to stay there as well.

    2) the propety owner/manager can place anyone on trespass from the property. But if a resident is allowing someone to come in their apartment as a guest then its not trespassing.Again if the manager wants them to stop visiting they need to evict whoever is allowing them to come visit.
    Last edited by DeputySC; 03-24-2011 at 12:45 AM.

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    Quote Originally Posted by SCDetective View Post
    In this state (SC), there is no firm definition of "legal residence." It is determined by totality of circumstances, such as amount and type of belongings they have with them, do they get mail there, what was nature of their stay, do they have a key, can they come and go as they please, what was nature of original agreement with host (did host agree to a couple of days vs. indefinitely), is money paid to host, etc.

    The attitude of my command staff is "if the property owner/manager requests a trespass notice, then we do one." I am concerned b/c we (the PD) are the one actually issuing the notice on one of our forms and we are the ones that will be arresting the person once they return. I see liability if we put someone on notice that could be considered a "resident" even though they are not on a lease, or an invited guest that has a right(?) to visit a leaseholder.
    Both are pretty common around the country.

    We don't have so much trouble with management companies. We have two in my city, both have similar policies, they will just evict everyone from an apartment, including the leaseholder if they have problems.

    What we run into is people moving in who aren't on the lease and will live there for months, sometimes even years. But as soon as the relationship goes south, the leaseholder will want us to just boot the non-leaseholder out immediately. I probably hear "he's not on the lease" five or six times a week. Personally I don't bite... you invited them in, you evict them.
    Last edited by Dingo990; 03-19-2011 at 12:45 AM.

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    Does the housing contract allow other people to move in without management's approval?

    We trespass (and arrest) invited guests off private property all of the time.

    As stated above, you need to find out how your prosecutor wants to handle these cases.

  7. #7
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    I would not issue them without a legal opinion from your city attorney, Solicitors Office or the Attorney General’s Office on this.

    I would think in SC that you would not be able to trespass someone who is a resident or the guest of a legal residence, I would refused to issue one without legal opinion.
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  8. #8
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    Quote Originally Posted by SCDetective View Post
    The attitude of my command staff is "if the property owner/manager requests a trespass notice, then we do one." I am concerned b/c we (the PD) are the one actually issuing the notice on one of our forms and we are the ones that will be arresting the person once they return. I see liability if we put someone on notice that could be considered a "resident" even though they are not on a lease, or an invited guest that has a right(?) to visit a leaseholder.
    s.
    There is your answer.

    Your command is giving you all the direction you need. They are obligated to defend you if they are wrong and a situation would go to court.

    You are issuing the notice & arresting if needed but the complainant is the property owner/manager.

    Around here if the name isn't on the lease and isn't married to someone on the lease-----they go if the manager says so.
    "Arguing with idiots is like playing chess with a pigeon - no matter how good you are, the pigeon will still crap all over the board and strut around like it won anyway."



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  9. #9
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    We've had issues like this in some of our public housing complexes in recent years, however the same applies to all apartment complexes. Florida law allows someone leasing property, be it an apartment or house, to have visitors. Case law has dictated that if someone is trespassed from a property, that trespass warning is null and void if they are allowed back on property by an authorized person. A resident is an authorized person. They don't even need to be in the company of a resident, only allowed by the resident to be on the property. It doesn't matter what the lease says, as leases are civil documents and trespass is a criminal offense. A civil lease is not going to supersede criminal case law.

    What we did to combat this was to change our written trespass warning. There is a section on it that says a resident is not authorized to overrule the trespass warning and notices went out to everyone in public housing explaining this. If we find the person back on the property and they say that they are the invited guest of a resident, we check with the resident. If the resident doesn't want to claim them, they go to jail. If the resident does want to claim them, the housing authority gets notified and the resident is promptly evicted. We have been instructed not to make arrests if the resident claims that the person is an invited guest due to the legal precedents.

    Again, this is Florida so it may be different for your state. I doubt it's much different though, as every state has landlord/tenant laws that cannot place undue restrictions on tenants. Not allowing tenants to have visitors, IMO, would be an undue restriction.
    Last edited by Delta_V; 03-20-2011 at 02:43 PM.

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    Thank you all for the very informative responses.

    As far as consulting with our city attorney, that doesn't seem to be a top priority of my command staff. That was my first suggestion when this topic was brought up. As far as following the command staff's verbal directive of "if landlord wants the notice issued, we will do it" seems wrought with trouble for two(2) reasons...they have selective memory when it comes to verbal directives and I could see them hanging us out to dry in a lawsuit or complaint, and second, IMHO it is borderline an unlawful directive IF it flies in the face of clearly established statute or legal precedent, which almost seems to be the case here. I liken it to a directive that states if a complainant wants someone arrested, then we will arrest them, regardless if there is sufficient PC to support the charge. Maybe I am reading too much into it. I am all about putting criminals in jail, but I like to make sure they are actually breaking the law when I do...

    Thanks again for the help.

  11. #11
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    Quote Originally Posted by SCDetective View Post
    Thank you all for the very informative responses.

    As far as consulting with our city attorney, that doesn't seem to be a top priority of my command staff. That was my first suggestion when this topic was brought up. As far as following the command staff's verbal directive of "if landlord wants the notice issued, we will do it" seems wrought with trouble for two(2) reasons...they have selective memory when it comes to verbal directives and I could see them hanging us out to dry in a lawsuit or complaint, and second, IMHO it is borderline an unlawful directive IF it flies in the face of clearly established statute or legal precedent, which almost seems to be the case here. I liken it to a directive that states if a complainant wants someone arrested, then we will arrest them, regardless if there is sufficient PC to support the charge. Maybe I am reading too much into it. I am all about putting criminals in jail, but I like to make sure they are actually breaking the law when I do...

    Thanks again for the help.
    CYA my friend. Whenever I'm faced with a "verbal directive" that could come back and bite me later, I do my best to get written documentation of the directive. A simple email to command could suffice in getting the "verbal" into some tangible written format.

    Good luck and be safe!

  12. #12
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    I'd go with consulting your city attorney. I'd imagine you are likely on a first name basis with them so I'd just casually ask.

    When it's my tail on the line then I like to cover all my bases.

  13. #13
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    Quote Originally Posted by SCDetective View Post
    Thank you all for the very informative responses.

    As far as consulting with our city attorney, that doesn't seem to be a top priority of my command staff. That was my first suggestion when this topic was brought up. As far as following the command staff's verbal directive of "if landlord wants the notice issued, we will do it" seems wrought with trouble for two(2) reasons...they have selective memory when it comes to verbal directives and I could see them hanging us out to dry in a lawsuit or complaint, and second, IMHO it is borderline an unlawful directive IF it flies in the face of clearly established statute or legal precedent, which almost seems to be the case here. I liken it to a directive that states if a complainant wants someone arrested, then we will arrest them, regardless if there is sufficient PC to support the charge. Maybe I am reading too much into it. I am all about putting criminals in jail, but I like to make sure they are actually breaking the law when I do...

    Thanks again for the help.
    I'm in SC as well and will add my 2 cents here. Whenever a property manager asks me to place someone on trespass notice I first explain to them that if a resident invites the person into their apartment or onto the property the trespass notice cannot be enforced. Bottom line is if the management is serious about removing problems from their complex they need to evict the tenants who cause problems and bring undesirable people onto the property. As far as being hung out to dry by your brass for issuing the notices I don't see that happening. Not because I have trust in your brass, but because I would trust that you wouldn't make an improper arrest. Just because you issue a trespass notice to someone doesn't mean you are going to take enforcement action. I can see where your brass would tell you to do that to placate the managers who are asking for the notice. You can certainly tell someone they are on trespass notice from the complex. When it comes time to arrest the person, however, it's your job to make sure you are on firm legal ground and there are no circumstances present that void the notice.

  14. #14
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    In NY they are considered a resident if they are on the lease OR have been living there for more than 30 days. So that 'friend' you let crash there for a month but now want out, yeah you have to let him in or you'll be arrested. Can't change the locks, can't turn off the heat etc. In order to evict they have to go through the court and start the eviction process (or OOP) that way.

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    Quote Originally Posted by BigW View Post
    I'd go with consulting your city attorney. I'd imagine you are likely on a first name basis with them so I'd just casually ask.

    When it's my tail on the line then I like to cover all my bases.
    We do not have a city attorney or city prosecutor...we prosecute our own summary court level charges. Our "city attorney" is a contracted firm and only handles civil matters like torts and matters dealing with city hall business.

    I guess I will try the solicitor's office (AKA - the DA's office for those of you outside of SC). Only problem with that is that they do not deal with trespassing cases at their level, but hopefully can track down the pertinent statutes or case law easier than I can.

    I'll post the response as soon as I get it for my fellow SC officers.

  16. #16
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    In Texas I would say that the specific apartments could be fair game for trespass warnings. If the subject is not on the lease but has been living there for several months I would not issue the trespass, but instead would tell the lease-holder to get a proper eviction. The courtyard, pool, lobbies and other open areas are considered public places as far as I know, so I wouldn't have a problem with issuing the trespass generally for the apartment complex in those cases.

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