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Apartment manager/representative previously requested and law enforcement agency issued a criminal trespass warning to defendant. Not sure if this part matters, but the written warning transposed the correct address - example: 1402 incorrectly written as 1042 and misstated the name - example: Miami Village Apts. to just Miami Apartments.
Subsequent arrest/charges filed because defendent was 'found in Apartment 9.' Defendent was an invited guest of the tenent leasing Apartment 9.
No doubt that defendant knew the apartment complex did not want him on the property, but it just seems strange. Any problems with filing this Class B as charged?
[This message was edited by Waco on 02-14-08 at .]
Doesn't the fact that the guy was an invited guest of the resident make a difference?
I'm going to bump this to the top because it raises an interesting question. What if an apartment complex gives me a criminal trespass warning, but then a resident invites me over?
As a rent-paying tenant, certainly they have the authority to allow a person over to their apartment. If the manager doesn't like it, they might be able to take action to evict the person.
But I find it difficult to believe that an apartment complex can CT someone, and then a rent-paying resident has no right to invite that person over. I don't believe the complex can determine that I can't have person A or person B in my apartment.
It the answer isn't clear for attorneys then how can it be clear to a lay defendat? What is the mens rea for trespass?
CCP SS 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. (b) For purposes of this section: (1) "Entry" means the intrusion of the entire body. (2) "Notice" means: (A) oral or written communication by the owner or someone with apparent authority to act for the owner; [...] CCP SS 1.07. DEFINITIONS. (a) In this code: [...] (19) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if: (A) induced by force, threat, or fraud; (B) given by a person the actor knows is not legally authorized to act for the owner; (C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or (D) given solely to detect the commission of an offense.
The gist of the warning is: we don't want you here. Why can't the defendant be expected to comply?
quote:is not a fair statement to make when a tenant of the property (who has an ownership interest in the space of property that he/she rents) has invited a person to his/her apartment.
It seems to me that a tenant has the legal right to invite anyone that he or she wants to have over at their apartment. That tenant has a 1st Amendment right to freedom of association. If that guest is not behaving properly, then that possibly could be a violation of the tenant's lease. But that is just a civil matter, not a criminal one.
Assuming the resident could legitimately invite the defendant to the apartment he leases, wouldn't the complex management's wishes prevail in the common areas of the complex? That would include the parking lots and walkways.
So associate at Starbucks, not somewhere where your buddy's going to get arrested. You don't have a First Amendment right of association anywhere you want. And if your home happens to be owned by someone else, they have a say as well.
What does the warning say? Was the defendant ordered not to be on the entirety of the complex property, or was he banned from a specific apartment?
If the owner's representative warned the defendant off the entirety of the property it should not matter what the tenant in number 9 says. Doesn't this sound sort of like, "But judge, I know I had this protective order, but Sweetie gave me permission to violate it"....
Suppose I leased an apartment to Joe.
I can't just say, "Hey Joe, I decided to spend the night with you. My mother-in-law is in town staying with us and she is driving me bonkers. Since I own the apartment and all it shouldn't be a problem. Actually I think I'll sleep in the bedroom since I own it and all... you and your wife can sleep on the couch or something. Or now that I think of it, maybe I'll just send my mother-in-law to sleep in your place so I can sleep in my own bed."
It seems logical that when you lease a residence to someone you are handing over the right to occupy that residence.
The apartment owner owns the property upon which the apartments stand, including the common areas and parking lot. It would seem obvious that the owner can exercise control over this property and exclude persons they wish to exclude. The tenant has no legal rights over these areas.
Is there a distinction to be made between notice and effective consent?
This is less a matter of constitutional rights or criminal law than it is contract law.
The Texas Standard Form Apartment Lease, promulgated by the Texas Apartment Association, and available online at http://www.taa.org/assets/PDF/renter/2007%20apartment%20lease%20-%20for%20website.pdf, reads, in paragraph 19, as follows:
"We may exclude from the apartment community guests or others who, in our judgment, have been violating the law, violating this Lease Contract or any apartment rules, or disturbing other esidents, neighbors, visitors, or owner representatives. We may also exclude from any outside area or common area a person who refuses to show photo identification or refuses to identify himself or herself as a resident, occupant, or guest of a specific resident in the community."
Every apartment tenant in the state signs a contract including this clause or one like it. As usual, JB's (and GregDavis') inclination is correct, and accords with common courtesy: if you're asked not to come back, don't.
Layman, you are understandably at a disadvantage in a legal discussion like this, and can think about it this way: when the apartment owner contracts to lease an apt. to a tenant, that owner holds a bundle of sticks (rights to access, live, cook, park, paint, etc.). He hands that tenant only as many as he wants, and in Texas, it generally does not include the "sticks" outlined in the paragraph I excerpted above. Hope that helps you in the future.
[This message was edited by Cory_C on 02-15-08 at .]
[This message was edited by Cory_C on 02-15-08 at .]
I understand your example of the sticks but this is criminal trespass rather than a civil contract dispute. The defendant, as a mere guest, would not know the details of the lease contract ... he wouldn't know which "sticks" were retained by the owner and which were assigned to the leasee.
And what if it was a defendant charged with criminal mischief in the apartment... suppose he spray-painted the walls. It would suffice to allege the leasee as the owner for the purpose of the criminal mischief so why not for the purpose of trespass.
Looking at the language of the statue, it appears that the leasee is an Owner of the apartment with respect to the defendant and probably with respect to anyone other than the actual owner:
CCP SS 1.07. DEFINITIONS. (a) In this code: [...] (35) "Owner" means a person who: (A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or (B) is a holder in due course of a negotiable instrument.
Uh, wow . . . Layman, I hope you don't try to tell your butcher how to cut meat. Suffice it to say, you've misinterpreted what I meant and are taking this discussion away from the salient legal issues at hand. Congrats, I guess.
Waco, obviously, this contract may help a little -- not gonna solve your all (or even most of) your issues.
I'm sorry if my response was offensive. I enjoy poking around in the gray areas tempting the absurd. I meant no disrespect.
Actually, the lease clause (as you say, likely to be in almost any lease and easily verified) is most helpful.
I have no details other than "criminal trespass warning" and "found in apt" but if it went down something like this:
"Hey, Boss - isn't that Joe Troublemaker's car parked in front of Apt. 9 (or isn't that JT walking into Apt. 9)? Want me to call the law?
(Knock-Knock). "Ma'am, we need to speak to Joe. Joe, I just told you yesterday they don't want you on this property. You have the right to remain silent . . . "
I would proceed with caution (i.e. do further research). I couldn't quickly find any case law directly on point, but the person may have a very good defense against a "criminal trespass" charge, or at the least the case could become more complicated/burdensome than it is worth.
In most states the tenant has a general freedom to invite guests. The tenant may have signed a contract with the landlord, but it only applies between them and does not make any third party criminally liable. (In other words, if you insist on having troublemakers as guests, you can be evicted. That does not mean the people you invite are necessarily subject to criminal charges).
For purposes of trespass "ownership" might be translated as "greater right of possession." I've gladly forgotten most property law (and my property prof used to complain that most judges have, as well), but such property principles are carried into criminal law -- for example, even though the landlord 'owns' the property they can not normally consent to a search of your apartment.
Though a landlord does have 'control' over common areas, that does not necessarily give them a right to exclude people who have 'license' from tenants. In other words, at a strip mall you must cross the sidewalk to get into the store where you are invited to do business. Can the landlord arbitrarily exclude guests and thereby subject them to criminal charges? Not an easy question.
One case somewhat related is "Zarsky v. State" 827 S.W.2d 408. It involved an abortion protester at a mall-like office complex. The defendant argued that they had "general invitation" to come on the premises from one tenant where they had conducted business. The court mooted their defense by finding that they did not have a "legitimate purpose" (defendant admitted that they weren't there to go to that business, but to protest abortions). Therefore the common landlord could order them off the property, and when they refused it was criminal trespass. Since the defense was mooted it wasn't ruled on as a matter of law, but it reads like it could have flown.
Similarly, it might matter *why* the landlord is trying to prevent the person from visiting a tenant. As others have noted, there can be constitutional implications. For example, there have been complex cases involving landlords who have tried to deny invited guests who were labor organizers, political activists, minorities, etc. (note "invited guests", not just door-knockers).
The landlord will probably claim the unwanted person is a drug-dealing child molestor Al-Qaid member. The tenant will probably testify as to their sainthood. Does either have anything more than hearsay?
Bottom line: If the defendant claims that the tenant had "apparent authority" to allow him in his apartment, can you cite specifific law otherwise? I'd guess a jury would be pretty sympathetic to someone arrested for being a guest in someone else's residence, even if there were past problems with the landlord.
It seems like there should be a dead-on precedent for this type of situation but I haven't seen it yet.
To clarify, I've found a lot of law from other states, but haven't tracked down specific Texas precedents yet.
Examples from a landlord/tenant website:
Subsidized owner gave police authority to issue no trespass warnings and arrest �loitering� nonresidents. Minor who said he was visiting resident brother and had previously received warning was arrested and convicted for trespass. Conviction reversed because owner �generally does not have right to deny entry to person a tenant has invited to come onto his property�, including its common areas. (referred to 6 A.L.R. 465 and 49 Am.Jur.2d, Landlord and Tenant �228 and 235) L.D.L. v. State, 569 So.2d 1310 (Fla. 1990)
see also State v. Dixon, 725 A.2d 920 (Vt. 1999) Landlord may not prevent invitees or licensees from entering tenant�s premises by passing through common areas.
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