Can a “Squatter” be Prosecuted for Criminal Trespass?

By Douglas K. Marsico, Esq.

A landlord entered into a lease with a tenant who then allowed her boyfriend to move in with her.

When the relationship came to an end, the tenant moved out of the property, and the ex-boyfriend stayed. The landlord, who was unaware of the living arrangement, discovered a man with whom he did not have a lease living in the property. The landlord demanded that he move out, but he refused. Can the man be prosecuted for criminal trespass? A Dauphin County jury recently faced this issue and found the man guilty of felony criminal trespass.

In this Dauphin County case, when the landlord realized that his tenant had moved out of the property, he acted promptly by informing the ex-boyfriend that he did not have permission to live at the property and demanding that he move out. After the defendant refused to leave, the landlord changed the locks on the property and had the water service discontinued. However, the defendant remained in the property and had the water service restored, and accumulated a water bill totaling $1,390 that he never paid. The defendant even allowed two more people to move into the property with him, charging them rent.

Next, the landlord went to the police who subsequently charged the defendant with felony criminal trespass. In Pennsylvania, a person commits the offense of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters, gains entry by subterfuge or surreptitiously remains in any building. Criminal trespass is a felony of the third degree punishable by up to seven years in prison and a $15,000 fine.

The jury found the defendant "surreptitiously remained" on the property after he was told to leave, and was therefore guilty of criminal trespass. The judge ultimately found suitable housing for the defendant at the county prison for a period of three months.

The facts in the Dauphin County case are not at all uncommon. Landlords often run into situations where a tenant enters into a lease and is subsequently joined by a "guest," such as a boyfriend or girlfriend. When the landlord knows about the cohabitation, it is likely that a court will find that the permissive guest had graduated to tenant status. By not objecting to the new person living in the property, the landlord may have implicitly added the guest to the lease, or perhaps formed a new implied or oral lease with this new "tenant". In such cases, the landlord should follow the eviction rules and procedures outlined in the Landlord Tenant Act and Magisterial District Court Rules of Procedure.

In instances where the landlord is unaware that a second person has taken up residence, if the landlord acts promptly, the Dauphin County case gives weight to the landlord seeking a remedy through the criminal prosecution. Not all police departments will cooperate in this regard as many will say "it's a civil matter." In such cases, the landlord may have no choice but to seek civil relief via an eviction or ejectment action.

Can the landlord simply changing the locks? Exploring the availability of self-help measures is a discussion for another day. There is at least one reported decision from a 1978 Philadelphia County case in which the court authorized a landlord to take self-help measures against a trespasser in possession.

The court opined that a peaceful measure, such as simply changing the locks, to keep a person who clearly has no legal right to possess the property was reasonable. The essence of the decision is that one must be a tenant in order to receive the protections provided by the Landlord and Tenant Act.

Philadelphia County Court decisions are not binding legal decisions anywhere except in Philadelphia County. Furthermore, it is possible that in the intervening 30-plus years, another Philadelphia Court decision could have overruled or disagreed with the 1978 decision.

Before any landlord chooses self-help, he or she should seek legal guidance to be sure that (a) the person is not legally a tenant; and (b) the landlord is lawfully permitted to engage in self-help. A better choice when dealing with a trespasser in possession is to call the police and ask for criminal trespass charges to be filed. If prosecution is declined, seek civil remedies in court.

Mr. Marsico is an attorney with Caldwell & Kearns which serves as general counsel to PAR. A portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline.