Thursday, February 7, 2013

Criminal Tresspassing, Squatters


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

16 comments:

Anonymous said...

If this is Virginia Law, doesn't it also apply to all of Virginia?
Not just Roanoke City?

Dallas ® on October 29, 2015 at 6:29 PM said...

Yes, you are correct. This applies to all of Virginia not just Roanoke City. The codes listed are state codes not city codes.

Anonymous said...

Can my neighbors own part of My wooded lot if they cut little bit grass on it after 15 year?
Should I put a put a fence up right now

Dallas ® on April 11, 2016 at 9:58 PM said...

I don't know how grass is growing in the woods. Normally no they can't take it by adverse possession. Because first of all they would have had to take it from you 15 years ago in a hostile manor. Such as putting up their own fence and claiming it as yours. Then you would have had to be OK with that and let them do it. Then they would have had to have shown their hostile take over of your land which would be visible to the public. Not so visible to the public if they put a fence in the woods. I would tell them stay off your property. That's enough to make it clear to them they don't own it and they need to stop mowing your property. You don't have to put up a fence. You telling them to stay off your property and making it clear to them where your property line is is enough. You could even get some string and mark it with that and some steaks for a while until they understand where your property starts. No need to be mean, but you do need to be clear about it.

Read this to learn more.

http://richfishlegalblog.blogspot.com/2009/02/supreme-court-of-virginia-affirms-law.html

Unknown on April 24, 2016 at 7:16 PM said...

What if you paid rent and established residency and after you paid everything (since I was living with my Boyfriend until he gave me an eviction notice for May 13th but now says I have to be out by the first he is not paying rent) the police tell me the eviction notice is not legal since it didn't go through the courts and I am obviously moving out (disabled, homeless, with 2 cats) but still he/his family got an unlawful detainer against me and are harrassing me daily.

Dallas ® on April 24, 2016 at 10:08 PM said...

Ok the disabled, homeless with 2 cat's doesn't have anything to do with trespassing. It also doesn't help you stay in a landlords house if you don't pay your rent. If you had an agreement with the landlord to live there and you are on the lease or you have a verbal agreement and the landlord has accepted money from you personally than you are a tenant and the landlord would have to terminate your leas which he can verbally do to evict you. If you refuse to leave then he would have to get an unlawful detainer against you since you are refusing to leave and you are unlawfully possessing the property after your lease was terminated as a result of non payment or a breach of your agreement.

If you don't have an agreement with the landlord and you have an agreement with someone else that lived there than you are what they call a squatter. You are illegally trespassing on the property. That is UNLESS you make an agreement with the landlord to stay. There is no such thing as squatters rights. You have no rights to just move into a house in Virginia and take residency.

If you are knowingly not paying the landlord you should do the right thing and move out of the property immediately to let him have possession of it again. It is immoral and unethical to hold the place hostage not allowing him to get money to pay his mortgage, insurance, taxes, etc. Be a nice person and do the right thing and call your friends, family, boyfriend, etc so you can get a temporary place to stay with them until you are back on your feet again. Time to get on the phone and start talking to people and make something happen.

Or call some agencies to get assistance. Call the social services department where you live to find out what agencies help with rent. Get a roommate immediately and give the landlord his rent if you are planning on staying. Most landlords aren't vindictive. They are just trying to get their rent so they can pay their bills. And if they can't get their rent they have no other option than to get you out as fast as possible before they end up getting foreclosed on. The bank doesn't care when the landlord tells them the tenant didn't pay so they don't have the mortgage money. They will foreclose anyway. So be a nice person and do something. Either give it back or give him the rent right away.

Active Army member being railroaded on May 6, 2016 at 11:20 AM said...

What if u are an active military member that entered into a lawful 2 Year lease with the original owner. A year later receive notice that the owner wasn't paying the mortgage although u have been paying your rent faithfully. The property was foreclosed,and sold at auction. The letter from the new owner is what alerted us (the active duty military member) about the situation. The new owner wants no tenant although made aware of this unjust situation, and is not wanting to give us adequate time to find a new place to live and afford moving fees. The military does not pay for this kind of move. What do we do in this matter?

Dallas ® on May 7, 2016 at 2:27 AM said...

Ok there were new laws passed in either 2009 or 2010. This new law makes it so by law the new owner of the house has to allow you to finish out your lease with the same terms you had with the previous landlord.

Now, if they wanted to move into the property themselves, they have the right to do so. However, they are required by law to give you 90 days notice.

So those are the guidelines that are required of the new owner. And you should let them know of them as they clearly don't understand the law. Be nice because it's always better to have a friendly relationship than a spiteful one. However let the new owner know that the lease has to be completed at the same terms by law.

Now one option that they have, that is if you agree to it, is they can buy you out essentially. They could potentially tell you they would like to do this or that to the property so would you consider taking X number of dollars to cover your moving expenses and set you up in another place. And that may or may not be something that you would be interested in doing.

But yes, you have the right to stay there and complete your lease. Unless the new owner is going to personally move into it. In that case you have 90 days from the time you have been notified.

Dallas ® on May 7, 2016 at 2:35 AM said...

Refer to the article I posted here regarding tenant rights regarding foreclosures.

http://www.reiofvirginia.com/2010/10/virginia-tenant-foreclosure-rights-code.html

Anonymous said...

can a relative living in my home not paying rent or any of the bills or taxes invite his girlfriend to move into my home live her and then get her pregnant keep me from making her leave and him to if I want to. They are claiming they have squatters rights after three months or more of residency in my home and they can actually claim ownership of my property and what ever personal possession of mine they want . That a local policeman informed them of their rights over me and my property. I need to know the answer to this. Even a local realtor friend of mine informs me this is true. How is there anyway any part of that can be legal ?

bluebird said...
This comment has been removed by a blog administrator.
Dallas ® on July 25, 2016 at 3:08 AM said...

I'm assuming that you are referring to the state of Virginia. I know the laws in Virginia, not other states. But most are similar. In Virginia there is no such thing as "squatters rights".

If you invite people to live in your house you will have to evict them. They are not squatters in the eyes of the law if you invited one of them. It sounds like you invited your relative. If someone just moves in without your approval than that's criminal trespassing. However a guest you invited to live with you has the legal right to have people over.

You need to file an eviction. It's easy to do. Go to your local courthouse clerks office and ask for an Unlawful Detainer form if this relative that moved in is not paying a previously agreed upon rent. You do not legally have to have a lease but leases do help as they prove an agreement and prevent the other person from lying.

And regarding your personal possessions that you are referring to, they have no rights to your belongings. Living there does not give them any rights to what you own.

Another option you have is to be a pain in the A** and make them WANT to leave to get away from you.

Your Realtor friend is misinformed.

Anonymous said...

Dallas, we are real estate investors in Virginia. We purchased a home at courthouse steps via a trustee's sale in April 2016. The home was occupied. The occupant had been living there almost 40 years. (She and her husband built the home. Husband is deceased.) We listened to her hardship story and offered her money to leave. She ignored the offer. We let her stay in the home thinking that she was going to move out soon. She agreed in writing to leave in July 17. She did not leave. We filed an unlawful retainer against her. She did not appear in court. Judge granted us immediate possession. 2 Days later, she filed an appeal. Now, we have to wait until October 2016 to appear in front of the judge to set a date to hear the case. We have been totally taken advantage of. She is still in the house. The house is on well and septic. Her well pump broke. She is using the neighbor's outside water spigot to get water via a hose to her front porch. Finally we got the brainy idea to have the electric cut off and put in OUR name. (It was still in her name.) We are going to have power switched to our name tomorrow, at which time we plan to NOT have power switched ON. We are very confused about this whole situation. She has no tenant rights, as she is NOT a tenant. She is a squatter. How can we not have rights here??? Please advise.

Dallas ® on August 30, 2016 at 1:42 AM said...

Ok that's a bad idea on preventing her from having power. Judges really don't like that in Virginia. Neither does Legal Aid. They look at it as going around them and doing a "constructive eviction". You are always best off just playing by the rules and not doing anything that could be deemed vindictive.

You got screwed I agree. You got screwed because of what you did. You delayed in filing an Unlawful detainer. One thing I can tell you is you NEVER wait. It doesn't matter what the person says. Start the court ball rolling. You can be nice and do that at the same time. Now you know. On your next purchase don't make the same mistake.

In Virginia it is the law that a person has their utilities on and in working order. I have in the past had tenants that were not paying rent that I wanted out that also were not paying their utilities. So I called the city and told the code enforcer that the utilities are off and they need to condemn the house. Once condemned I would take care of a little list of things they wanted done and it would immediately be un-condemned once done.

You are always best off in court doing things the legal way and looking like the good guy who got screwed. Whenever you do something that the judge determines to be vindictive, you end up getting screwed by the judge. So be very careful with that constructive eviction.

Yes, I agree, it's not fair. I'm just telling you the way it is. Hopefully you checked the box on the unlawful detainer saying you are asking for all money owed up until the final judgement. When you get to court increase what's owed based on what you lost as a result of not being able to rent it. It's fair to ask for average rent for an X bedroom place. Look on Rentometer.com to see what the rent should be. You can later go after her with a garnishment to get her back as long as she has employment you can find. Or a bank account. You can file an interrogatory to get her in court so she can be questioned on her remaining assets, work, etc.

Anonymous said...

Form mentioned at the beginning of article for criminal trespassing?

Dallas ® on September 2, 2016 at 2:43 PM said...

Here it is. What I was saying there is it's best, prior to calling the police, to make sure that the person who is trespassing is aware that they are trespassing via personally serving them the form on this page. I will go to them and tell them they are trespassing while asking what their name etc is. If they don't give it I will serve it on them without filling that part out and will take a photo of them to show the police letting them know that they refused to give me information on who they are. In many cases however, your tenant will know who they are.

http://www.reiofvirginia.com/2011/03/can-residential-landlord-bar-guests-of.html

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