Landlord entered tenant's home when tenant was not there and without tenant's permission. Is that criminal trespass?

I was inclined to say it is because the right of possession and control of the property belong to the tenant, but after looking at PC 30.05 and considering that the tenant's right is contractual, I'm not so sure. Thought I'd see if anyone here already knows the answer and authority before I delve deeper.

I'd personally want to see the lease agreement to see if it would help you determine existence or absence of any of the elements. In absence of specific language in the contract, I think you'd have a tough go proving the "notice" portion of the offense. Also, if I'm the landlord, I'm saying that my having a key constitutes effective consent to enter. Of course, if you've got something like a perv landlord, some of these objections might not matter so much. This is from the hip, maybe someone else has already tried this case.

"Property or building of another" is ambiguous and does not immediately translate into the arguably broader special ownership concept of 1.07 (35), though some cases talk about the need only for a greater right of possession. E.g., Davis, 799 S.W.2d at 400. Cf. Kinsey, 861 S.W.2d at 385; Palmer, 764 S.W.2d at 334. The tenant has the right to quiet possession and a civil remedy if it is breached. That right may be conditioned either by law or contract on the tenant's performance under the rental agreement. As a former residential landlord (hopefully never again), I would have a big problem with you criminally prosecuting me for entry onto "my" property, especially if it was just to try to confirm that my tenant was complying with his duties under the rental agreement. Certainly the terms of the rental agreement may raise the issue of effective consent or the likelihood of a mistake of fact concerning that element (also known as the "bona fide dispute defense"). See Hann, 771 S.W.2d at 733. Depending on the purpose for the entry, or what happened as a result, I would be most reluctant to make it a criminal matter.

According to the officer, the tenants came home to find the landlord sleeping in the tenants' bed. Wonder if there was any porridge involved.

So charge him with unlawful appropriation of the bed.

Thanks for the cites, Martin. They've been quite helpful.

FYI, the latest rule appears to be that the State may allege ownership instead of "property of another" and establish it by proving that the complainant had a greater right to possession of the property than the defendant did. Arnold, 867 SW2d at 379 (C.C.A. 1993).

I didn't find any cases directly on point, however, and I'm inclined to say that extending the above rule to these facts is probably stretching it too far.

[This message was edited by Kiele Linroth Pace on 05-14-03 at .]

I had a trespass trial that hinged on that issue last year, the title-holder of the (you'll never guess) double-wide claimed he gave his new girlfriend permission to kick the door in on the place, where she found her husband in his underwear with the owner's wife. yeeee-haw. Had to argue, with a straight face, that the estranged wife had greater right to possession than new girlfriend acting with owner's consent. It worked, but how embarassing for all.

Kiele, I do not believe Arnold did much more than lay the groundwork for considerable confusion, if not much mischief. I do not think it overruled such cases as Hann, nor would it necessarily have changed the result in Hann. That special ownership can be sufficient to prove ownership vis-a-vis a defendant who presents no evidence that he owns the property, doesn't say much about the liability of a landlord.

Agreed.

If one were going to prosecute a landlord, the following cases should be helpful: Mallam, 227 S.W.2d 344 (the right of exclusive possession is one of the constituting and essential elements of tenancy); Galley, 127 S.W.2d 978 (lessee is entitled to possession as though he had purchased fee-simple title to the land); Mobile Pipe Line Co., 860 S.W.2d at 159 (right of owner to possession is divested during the term of the lease and the tenant may exclude owner from the property); Hawkins, 100 S.W.3d at 548 (subjecting a fee simple to a lease removes some of the rights that a owner has and prevents the owner from possessing the property).

You might also want to check out Johnson County Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996), which holds that a lessor generally has no liability, based on a lack of duty, to third parties injured on leased premises because the lessor relinquishes possession to the lessee. Or you might not. Endsley also notes the exceptions to the general rule (basically related to voluntarily-undertaken repairs and common areas which are retained in the possession the lessor), so it could be helpful in assessing whether your facts fall within or without the general rule.

Why would you want to go out of the way to prosecute this landlord? These tenants should just move! No one needs a crazy landlord. My friend was about to rent a house and the owner told her he'd gladly pay for the water bill, as long as he was allowed to come over and do his laundry whenever he wanted. She didn't lease that house.

I am not attempting to prosecute the landlord. My purpose was to answer the investigating officer's question about whether or not the conduct constituted a criminal offense.