As many of you know, I've been working with Roanoke City Police Chief, Chris Perkins, on some state laws we didn't feel were being enforced. A victory for REI of Virginia and the City came out of this. Chief Perkins worked with the city attorney over several months and found lots of case law that supports CRIMINAL ARREST on any person who is in your property that is NOT on the lease and has been warned to leave by either you as the owner or the bonafide tenant. Save this post and you can let the officer read the chief and the City Attorneys position word for word.
The Roanoke City Police Department has decided to enforce this crime only if they are being called due to a disturbance call that they receive. I would suggest that both you or your tenant fill out a trespassing form similar to what I posted on the REI of Virginia website prior to having non tenant who has taken residence arrested.
Squatters have NO RIGHTS in Virginia! And NO ONE can MAKE themselves a tenant. The any and all other occupants is technically unnecessary that you put on your unlawful detainers as they are criminals illegally in your property and trespassing!
Communication from me to Chief Perkins:
Chief Perkins,
Real Estate Investors of Virginia is trying to find an answer to a very important question of the law. We have had officers come to our meetings and it seems that everyone has a different opinion on the trespassing laws.
Some say that in any case if a person has taken residence in a landlords property that is not on the lease, weather it is a squatter or guest of the tenant that overstayed their welcome, that this is a civil matter and not a criminal matter and the tenant or landlord would have to file an unlawful detainer to attempt to remove them from the property.
Other officers have said that squatters have no rights but people that the tenant let live with them that are not on the lease, that the tenant on the lease wants out, have rights to the property because they have taken residence there.
It appears by the trespassing laws quoted below that no one has rights or residency to a house or apartment if they are not the tenant on the lease. And it doesn't say anywhere that I am aware of that the person who doesn't belong in the house can become a tenant without a lease.
However it appears that if the person who moved in and is not on the lease has been given a trespassing notice and they reenter the property they are trespassing and it is a criminal matter, not a civil matter. Could you please clarify the law if we are wrong? Many of our members feel that the police department may not be enforcing this law as we are not able to find anywhere in Virginia Code that states that a person can take residence if they are not on the lease making it a civil matter rather than a criminal matter as the law suggests. If you know of where there is some law that we are missing that says that this is not trespassing or it is a civil matter could you please lead me to the code.
As always, thank you for your help!
Best regards,
Dallas.
PS: below are the laws that we have found pertaining to this issue.
Virginia Code § 18.2-119 defines the crime of trespassing as follows:
If any person without authority of law goes upon or remains upon the
lands, buildings or premises of another, or any portion or area
thereof, after having been forbidden to do so, either orally or in
writing, by the owner, lessee, custodian or other person lawfully in
charge thereof, or after having been forbidden to do so by a sign or
signs posted by such persons or by the holder of any easement or other
right-of-way authorized by the instrument creating such interest to
post such signs on such lands, structures, premises or portion or area
thereof at a place or places where it or they may be reasonably seen,
or if any person, whether he is the owner, tenant or otherwise
entitled to the use of such land, building or premises, goes upon, or
remains upon such land, building or premises after having been
prohibited from doing so by a court of competent jurisdiction by an
order issued pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4,
16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15,
16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte
order issued pursuant to § 20-103, and after having been served with
such order, he shall be guilty of a Class 1 misdemeanor. This section
shall not be construed to affect in any way the provisions of §§
18.2-132 through 18.2-136.
Here is another little bit of
Virginia Code 55-248.31:01. Barring guest or invitee of tenants. A. A guest or
invitee of a tenant may be barred from the premises by the landlord
upon written notice served personally upon the guest or invitee of the
tenant for conduct on the landlord's property where the premises are
located which violates the terms and conditions of the rental
agreement, a local ordinance, or a state or federal law. A copy of the
notice must be served upon the tenant in accordance with this chapter.
The notice shall describe the conduct of the guest or invitee which is
the basis for the landlord's action.
B. In addition to the remedies against the tenant authorized by this
chapter, a landlord may apply to the magistrate for a warrant for
trespass, provided the guest or invitee has been served in accordance
with subsection A.
C. The tenant may file a tenant's assertion, in accordance with
55-248.27, requesting that the general district court review the
landlord's action to bar the guest or invitee.
What I posted on the REI website about it:
http://www.reiofvirginia.com/search/label/trespassing%20notice
And here is some more:
Virginia Code § 18.2-119. Trespass after having been forbidden to do so; penalties.
If any person without authority of law goes upon or remains upon the
lands, buildings or premises of another, or any portion or area
thereof, after having been forbidden to do so, either orally or in
writing, by the owner, lessee, custodian, or the agent of any such
person, or other person lawfully in charge thereof, or after having
been forbidden to do so by a sign or signs posted by or at the
direction of such persons or the agent of any such person or by the
holder of any easement or other right-of-way authorized by the
instrument creating such interest to post such signs on such lands,
structures, premises or portion or area thereof at a place or places
where it or they may be reasonably seen, or if any person, whether he
is the owner, tenant or otherwise entitled to the use of such land,
building or premises, goes upon, or remains upon such land, building
or premises after having been prohibited from doing so by a court of
competent jurisdiction by an order issued pursuant to §§ 16.1-253,
16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8,
16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or §
19.2-152.10 or an ex parte order issued pursuant to § 20-103, and
after having been served with such order, he shall be guilty of a
Class 1 misdemeanor. This section shall not be construed to affect in
any way the provisions of §§ 18.2-132 through 18.2-136.
Response by Chief Perkins After A Few Months of Research:
Dallas,
Per you your request, police staff has worked with the City
Attorney's Office in researching the issue regarding whether a police
officer should charge an individual for criminal trespass when they are
found in a residence, which they do not either own or are not specifically
named as a tenant. This situation most often arises when a police officer
is responding to a domestic disturbance complaint. Once the officer
arrives, he finds that one of the parties is either the owner of the
property or the named tenant on the lease.
The Virginia Court of Appeals
published a case in 2002, McCracken V. Commonwealth of Virginia in which
the Court held that is was reasonable for two officers who responded to a
domestic disturbance to believe that a defendant was trespassing when they
had previously verified that the owner had ordered the defendant to leave
the property. This particular case was fact specific and involved a
domestic disturbance. The Court found that the two police officers knew
that one of the individuals was the owner of the property. The police
officers had previously arrived at the property in response to a domestic
disturbance call. All parties involved agreed that the non-owner of the
property would move out. The non-owner removed his possessions from the
property and left the property while the officers were present.
Approximately ninety (90) minutes later, the officers were again called to
the same property for another domestic disturbance complaint. When they
arrived on the scene, they observed the male non owner inside the property.
The Court of Appeals held that based on these facts, the police officers
had “probable cause to believe that the defendant was trespassing” under
Virginia Code Section 18.2-119. The Court took into consideration that
these officers had observed the initial domestic call and that they had
verified that the female, Ms. Fields was the actual owner of the property.
The Court noted that as the owner of the residence, Ms. Fields could revoke
her permission for the defendant to remain in the property.
Likewise, in a tenant situation, should one of the residents of the
property be a named tenant on the lease, then they have the right to ban
another individual from the property who is not named on the lease. If a
police officer is responding to a domestic disturbance complaint, as in the
McCracken case, then a tenant may ask the non-tenant to leave the property,
If the non-tenant refuses to leave the property, then it is opined that the
police officer has probable cause to arrest the non-tenant for criminal
trespass under Virginia Code Section 18.2-119. When the Court of Appeals
has cited the McCracken case, it has noted that an owner has the right to
revoke permission for a non-owner to remain on the property. Under the
concept of quiet enjoyment, it is believed that a named tenant to a lease
would have the same right to restrict the access of a non-tenant. See
Farrow v. Commonwealth of Virginia, 05 Vap UNP 1811042 (2005). Therefore,
police officers will only utilize criminal trespass in these situations
that arise out of domestic disturbance complaints where the
non-owner/non-tenant refuses to leave the property. It is important that
the police officer be able to clearly establish who owns the property or
the individual who is the named tenant, prior to charging anyone with
criminal trespass.
In situations arising out of landlord/tenant disputes, police
officers will advise the parties that such matters are best resolved in the
civil courts or advise the landlord that he/she may attempt to obtain a
criminal warrant through the magistrate because a police officer should
remain neutral when confronted with what is obviously a civil
landlord-tenant dispute. The McCracken case emphasized the importance of
maintaining the peace during a domestic disturbance complaint and a police
officer having probable cause to arrest a non-owner or non-tenant who
refused to leave the property when ordered. In cases involving disputes
between a landlord and a named tenant, such matters are better left to
civil courts.
Sincerely,
Chris Perkins
Email From Me Back To Chief Perkins:
Hi Chief Perkins,
REI of Virginia would like to thank you for working with the City Attorney's Office to search for case law in Virginia. We're glad to hear that in a domestic disturbance call the police can arrest someone has refused to leave by request of the owner or bonafide tenant. If you could pass that on to your officers so we are all on the same page it would be greatly appreciated.
Thanks again for your help!
Best regards,
Dallas