by Noel R. Bagwell, III
for Executive Legal Professionals, PLLC

October 16, 2015

When a guest becomes a trespasser, you shouldn’t have to evict them… but you might!

In the last couple months, I have received a couple of troubling phone calls from prospective clients. In both cases, the prospective clients, one a land owner and another the authorized agent of a land owner (her brother, who was mortally ill, in the hospital), stated there was a guest in the home of the land owner who, out of the land owner’s charity and compassion, and without any expectation of any pecuniary gain whatsoever, had been invited to find shelter in the land owner’s home. At no time was any rent ever requested, required, or paid. At no time was the guest required to give any consideration whatsoever for the privilege of the landowner’s continued consent to their presence on the premises.

In both cases, however, eventually the land owner’s patience with their guest wore out, and the guest was asked to leave. In both cases, the guest told the land owner they had to give the guest 30 days’ notice. Essentially, the guest was saying, You have to evict me, give me due process; you can’t just kick me out whenever you want. The guest was asserting to the land owner that they had a right to continue to stay there, whether or not the land owner wanted them there. In both cases, the guest asserted they had been there for a certain length of time–days or weeks–and that they were having their mail delivered to the premises.

Most troubling, in both cases, the land owner made contact with the police, or the police made contact with the land owner or the owner’s authorized agent; and the police officers all told the land owner the same thing: you have to evict this person. The police said, You can’t just kick out your guest whenever you want.

These officers gave these land owners incorrect information. I believe the officers were sincere. Nevertheless, they were wrong. Their interpretation of the law was wrong. These officers enforced the wrong interpretation of the law, and, I believe, as a result, they opened their police departments up to civil liability for wrongfully depriving the land owners of their legal right to exclude trespassers from their property.

When the police don’t understand the law, we all suffer.

The problem is police officers very badly deal with this issue all the time. They do not know or understand the law; they are not lawyers; and, consequently, they usually make the wrong choices when it comes to enforcing the law. I would love to have the opportunity to explain to an officer–or an entire police department, if I could–exactly what they need to know in order to stop depriving the lawful owners of property of their right to lawfully exclude trespassers.

The provisions of Tennessee Code Annotated (“T.C.A.”) § 66-7-109 apply only when a tenancy has been established. If no tenancy has been established, therefore, the requirements of T.C.A. § 66-7-109 do not apply.

A tenancy may be created by a lease agreement, but such an agreement requires both parties to the agreement to provide consideration (“consideration” is anything given in an exchange–even a promise; it is the quid pro quo). If only one party provides consideration, there is insufficient consideration to create a lease agreement, and, as a result, no tenancy will be created.

There are other kinds of tenancies than those created under a lease agreement. A certain type of tenancy, called a tenancy at will, may be express or implied, but creating a tenancy at will requires both parties to have had the intent to create a tenancy at will at the time any such tenancy is alleged to have been created. Furthermore, some consideration has to be furnished to create even a tenancy at will. If neither party intends (or if only one party intends) to create a tenancy at will and if no consideration has been furnished, no tenancy at will can have been created, because the minimum requirements to create the tenancy at will have not been met. A hearing may be required, in the case of an implied tenancy at will, to determine whether a tenancy at will has been created. At common law, a tenancy at will was terminable at either party’s fancy with no notice period required. Most states today require 30 days’ notice for a landlord to terminate the tenancy.

In both of the cases I mention at the beginning of this article, neither a tenancy arising under a lease agreement (express or implied) nor a tenancy at will was created with respect to the guests the land owners had on their property. No consideration was given–no quid pro quo–under any lease agreement; not even a promise was given; not even a promise to abide by any rules was given; and, therefore, no tenancy was created under any alleged lease agreement, because no such lease agreement existed. Neither party had–or, at least, the land owners did not have–the intent at any time to create a tenancy at will, either, because (1) the land owners were not aware of the concept of a Tenancy At Will; (2)the land owners would not have intended to give their guests the rights pertaining to a tenancy at will if the land owners had known of the existence of such a legal concept; and (3) there was no quid pro quo, no rent paid, no promises given in exchange, no consideration of any kind related to any alleged tenancy at will; and, therefore, no tenancy at will existed.

In the absence of any kind of tenancy whatsoever, the only rights the land owners’ guests would have been given under the arrangement are those of a guest, which is precisely what their guests were! The land owners’ guests may have taken the liberty of having their mail delivered to the properties involved. The guests may have been guests for a long period of time. None of those facts are relevant to these situations, because none of them are adequate to establish a tenancy. That’s what police officers often don’t understand; they do not know what is required to establish a tenancy.

In Tennessee, simply having mail delivered or sleeping a certain number of nights in the same place does not constitute “establishment of a tenancy.” I could squat in someone’s home and have my mail delivered there–whether they are aware of it or not, whether they permit it or not–and it would make me no better than a trespasser, or, at best, a guest! I would have no legal right to continue to do that, if the landowner asked me to leave. I would have been, at best, a guest whose welcome has worn out; and I would be under a legal obligation to leave, if asked to do so, without recourse to any legal requirement to be notified and without recourse to any due process, eviction proceedings, etc., etc.

One does not have to evict a guest! One must evict tenants, but if no tenancy has ever been created, and the person is just a guest, one has the legal right, as a property owner, to exclude any former guest from his premises, because the guest becomes a trespasser when one asks them to leave and the trespasser refuses to do so. The right to exclude any non-owner from the premises of real property one owns is so well-established that having to cite a case seems patently absurd, but I will do so, because police officers often require citizens to go to even absurd lengths to exercise the most basic of their constitutional and civil rights.

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Each owner has a broad right to exclude any other person from his property. Indeed, the United States Supreme Court has characterized the right to exclude “as one of the most essential sticks” in the bundle of rights a property owner has. Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). For example, if you hold title to a tract of land you may–as a general matter–prevent anyone else from entering upon it. In practical terms, a land owner’s right to exclude is implemented through the tort doctrine of trespass.

If you request that someone leave land you own, if they refuse to do so, and if they have no legal right to refuse to leave (such as rights they may have under a tenancy), they are a trespasser, and may be sued for Trespass to Land. Furthermore, the police, in enforcing the law, are lawfully entitled to remove trespassers from land, once they are notified of the trespass, if the trespass is ongoing and the trespasser is defiant.

The U.S. inherited its laws regarding land owners’ rights to exclude trespassers from England in the 1700s. The trespass doctrine has deep roots in early English common law. In the eighteenth century, Sir William Blackstone endorsed the absolutist view of the right to exclude in his famous and popular treatise, Commentaries on the Laws of England:

… Every unwarrantable entry on another’s soil the law entitles a trespass…; … For every man’s land is in the eye of the law, inclosed and set apart from his neighbor’s: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of the law, as when one man’s land adjoins to another’s in the same field. Every such entry or breach of a man’s close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage. William Blackstone, 3 Commentaries on the Laws of England 209-10 (1768).

Under English common law, any intentional and unprivileged entry onto land in the possession of another person was a trespass. As Restatement (Second) of Torts § 158 reflects, modern American law still follows this approach:

One is subject to liability for trespass, irrespective of whether he thereby causes any harm to any legally protected interest of the other, if he intentionally … enters land in the possession of the other, or causes a thing or a third person to do so. …

In this context, the defendant acts intentionally if he voluntarily enters onto the land. It is not necessary to prove that he had a subjective intent to trespass or that he otherwise acted in bad faith. Suppose that a person voluntarily walks onto land which he believes is part of a public park, but which actually is private property owned by another. This is a trespass, regardless of the good faith of the trespasser. (Sprankling, 2009)

However, an entry made under a privilege is not a trespass. The most common privilege is consent. One type of person holding the privilege of consent is a guest. When the guest’s privilege is revoked, when the consent is withdrawn, if the former guest remains on the property, they become a trespasser.

Again, this is such a basic concept in the law of property rights, no one should have to explain it to a police officer–especially not in such thorough detail. Nevertheless, I feel this explanation is not only warranted, in this case, but necessary, because this is not the first time I have received a phone call from a prospective client about the police telling them that a former guest, now a trespasser, must be evicted, when that simply is not the case. Trespassers do not have to be evicted or given 30 days’ notice, because the requirements of T.C.A. § 66-7-109 do not apply to trespassers. The requirements of T.C.A. § 66-7-109 only apply to tenants, not to trespassers. It’s a shame the police cannot tell the difference.

What To Do If You Have a Guest-Turned-Trespasser

First, kick the bum out! …peacefully!! Do not ever resort to violence. If you can put all their stuff out on the curb and change the locks before they have a chance to do anything about it, that might be a good way to get rid of a trespasser. You should definitely consult a lawyer about your specific circumstances, find out what your legal options and rights are, and then decide what to do. Don’t just spring into action based on what you’ve read in this article, because your circumstances might differ in subtle but important ways from those described above.

If a police officer tells you you must evict a trespasser, go ahead and comply with their order, but then talk to a lawyer about filing a lawsuit against both the trespasser and the police department, because the police department may be liable for its negligence “causing a thing or a third person to” commit a trespass to land with respect to your property, because, but for the police department forcing you to permit a trespass to continue, you would have been within your rights to require your former guest, now a trespasser, to leave. When the police enforce an incorrect interpretation of the law, it opens them up to civil liability–at least, it should.

Maybe if enough citizens successfully sue police departments over this deprivation of their property rights, the police will start hiring attorneys like me to come educate the police about the law, which would prevent this sort of thing from happening. Until then, our tax dollars will continue to fund police departments full of officers who, instead of protecting land owners from trespassers, will protect trespassers from land owners. What a disgrace!

So, how do you avoid this problem, if you’re a land owner in Tennessee? Well, don’t take long-term houseguests into your home; that would pretty much solve that problem. Maybe consider putting them up in a pay-by-the-week motel or something, instead. If anyone is going to stay in your home for more than one week, you should consider having them sign a lease agreement, and requiring them to agree to pay rent, even if it’s just a small amount. If that seems like overkill to you, you should at least sign a document conveying to them a Tenancy at Will, and waiving the tenant’s right to eviction under T.C.A. § 66-7-109. The bottom line is: don’t just give away your rights, especially when you can’t depend on the police to understand and enforce your legal rights as a property owner.

It’s a far easier and less expensive to prevent this kind of problem than it is to evict a trespasser with the

[fire]power of a police force backing them up. If you need preventive legal services related to guests, trespassers, or tenants, or if you have a matter that may require litigation to resolve, we’d like to hear from you. Contact Executive Legal Professionals, today, for a no-obligation consultation.

Citations

  • Sprankling, J., & Coletta, R. (2009). Property: A Contemporary Approach. St. Paul, MN: Thomson/West.

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