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Responding to Landlord Use of a Trespass Policy That Interferes with Guest Visits

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by Jim Schaafsma, MPLP  

The issue

Landlords, particularly public housing commissions, adopt policies that permit them to label tenant guests as trespassers and then seek enforcement of state trespass statute against them.

The usual form  

A landlord informs (sometimes in writing) a visitor that he/she is not welcome on the premises, must leave, and will be considered a trespasser if returns (or refuses to leave).  Landlord enters person’s name on a trespasser list or log.  If person returns, landlord seeks arrest for trespass.

Typical trespass standard - non-residents on premises for no apparent legitimate reason or specific legitimate purpose.

Michigan trespass statute – MCL 750.552

Person on premises of another without legal authority, and has been forbidden to do so or who refuses to depart after being notified to by owner or occupant (or their agent) is guilty of misdemeanor.

 
What’s wrong with this practice

Besides the impact on rights of guests, it violates fundamental tenant and constitutional rights, particularly ones in public and other assisted housing

 
Case Law

Only relevant Michigan (federal) case states that it is unconstitutional and beyond owner property rights to enforce MCL 750.552 so as to exclude invitees of residents of farmworker camp.  Folgueras v. Hassle 331 F.Supp. 615 (W.D.Mich.1971). (its conclusion that residents were tenants was rejected by Michigan Court of Appeals in DeBruyn Produce Co. v. Romero, 202 Mich App 92 (1993).  Another good access case is State v. DeCoster, 653 A.2d 891 (Maine 1995)

 
Other cases

Civil

PHA authorized police to act as its agent in enforcement of trespass violations.  Persons believed to be on site for “no apparent legitimate reason” warned (arrest if return for any reason) and logged.  On motion for preliminary injunction (granted), court held that, under U.S. Housing Act (42 USC §1437d) and its regulations, residents’ right to have guests visit them is substantial enough to support a §1983 claim. Diggs v. Housing Authority of City of Frederick, 67 F.Supp.2d 522 (D. Maryland 1999)

No trespass letter to frequent guest of tenant breached tenant’s statutory and common law covenants of quiet enjoyment.  Branish V. NHP Property Mgt., 694 A.2d 1106 (Pa. 1997).

            Guest approval policies

Policy requiring written management approval (with unlimited discretion) for every overnight guest, neither necessary nor reasonable.  Lancor v. Lebanon Housing Authority, 760 F.2d 361 (1st Cir 1985) see 24 CFR 966.4(d)(1) & (f)(4), and also 24 CFR 964.135 and 12 USC 1715z-1b (privately owned assisted housing); see also McKenna v. Peekskill Housing Authority, 647 F.2d 332 (2nd Cir 1981).


Criminal                                                                                                                                                                                                                                                                    
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.