LANDLORD-TENANT ‑- CRIMES ‑- CRIMINAL LIABILITY OF LANDLORD FOR UNLAWFUL ENTRY INTO PREMISES OF TENANT

LANDLORD-TENANT ‑- CRIMES ‑- CRIMINAL LIABILITY OF LANDLORD FOR UNLAWFUL ENTRY INTO PREMISES OF TENANT

(1) A landlord or other person acting under his authority who enters the premises of his tenant without the tenant's consent or without the authorization granted by RCW 59.18.150 may be subject to prosecution for criminal trespass under RCW 9.83.080.

(2) The defense against criminal liability for trespass afforded by RCW 9.83.080(3)(d) is not available to a landlord or one acting under his authority who has unlawfully entered upon the premises of a tenant.

(3) A landlord who unlawfully enters upon the premises of his tenant may be deemed to have entered with the intent to commit a crime therein, and thus be found guilty of burglary in a criminal prosecution therefor, unless such unlawful entry can be explained by testimony satisfactory to the jury to have been made without criminal intent.

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                                                                  May 16, 1974

Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1974 No. 10

Attention:  !ttMr. Gerald Huard

            Director

            Office of Volunteer Programs

            Housing Listing Post

Dear Sir:

            By recent letter you requested the opinion of this office on certain questions involving landlords and tenants.  We paraphrase your questions as follows:

            (1) May a landlord or other person acting under his authority who enters the premises of his tenant without the tenant's consent or without the authorization granted by RCW 59.18.150 be subject to prosecution for criminal trespass under RCW 9.83.080?

             [[Orig. Op. Page 2]]

            (2) If any such persons are so subject to prosecution, is the defense provided in RCW 9.83.080(3)(d) available to a landlord or one acting under his authority?

            (3) Under what circumstances may a landlord or one acting under his authority be subject to conviction for burglary by reason of an unlawful entry into the premises of his tenant?

            For the reasons set forth in our analysis we answer question (1) in the affirmative, question (2) in the negative, and question (3) in the manner set forth therein.

                                                                     ANALYSIS

            For purposes of this discussion, our references to the term "landlord" will generally be deemed to include agents or others acting under his authority.  Certain qualifications, however, must be kept in mind when it is not the landlord himself but only his agent who has committed an unauthorized entry onto the premises.  A landlord will not usually be subject to criminal prosecution for the actions of his agent where a wrong has been committed by the latter without the landlord's knowledge or specific authorization.  Although there are certain circumstances under which a landlord may also be liable for the criminal acts of his agent, each case will turn on its own particular facts.  While this preliminary observation is not central to our opinion, the point may be useful in advising aggrieved tenants.

            Question (1):

            RCW 9.83.080, commonly referred to as the criminal trespass statute, provides as follows:

            "(1) Every person, knowing that he is not licensed or privileged to do so, who enters or remains in any building or occupied structure or separately secured or occupied portion thereof including but not limited to publicly owned or occupied buildings, structures or portions thereof shall be guilty of criminal trespass, a misdemeanor.

            "(2) Every person, knowing that he is not licensed or privileged to do so, who enters or remains in any public or private place  [[Orig. Op. Page 3]] or on any public or private premises as to which notice against trespass thereon is given by the owner or some other authorized person, through (a) actual communication to the actor, or (b) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders or (c) fencing or other enclosure manifestly designed to exclude intruders, shall be guilty of criminal trespass, a misdemeanor.

            "(3) Every person, knowing that he is not licensed or privileged to remain, who defies an order to leave public or private places or public or private premises communicated to him by the owner of said place or premises or by some other authorized person, shall be guilty of criminal trespass, a misdemeanor.

            "It is a defense to prosecution for criminal trespass under this section that (a) the building or occupied structure referred to in subsection (1) above was abandoned, or (b) any place or premises referred to in this section were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises or (c) the actor reasonably believed that the owner of any of the places or premises referred to in this section or other person empowered to license access thereto would have licensed him to enter or remain or (d) the actor had possession of the premises originally under a landlord-tenant relationship or as mortgagor or vendee on a real estate contract."

            Our conclusion that this statute may be violated by a landlord upon entering the premises of his tenant is based upon the possessory right which the tenant has in the premises under the common law and by statute.  To the extent that this right is transgressed by his landlord, and the defense provided for in the last paragraph of the statute is not available to him, the landlord will be subject to prosecution thereunder for criminal trespass.

             [[Orig. Op. Page 4]]

            This conclusion, however, requires discussion in somewhat greater detail as to both of these qualifications.  We will first review the scope of the tenant's right to possession and then, in responding to your second question below, we will consider the issue of availability of the statutory defense.

            Prior to the enactment of the "Residential Landlord-Tenant Act of 1973,"1/ the tenant's right to possession developed largely by judicial decision.  To begin with, the courts recognized that all tenancies contain an implied covenant of quiet enjoyment with respect to the property.  Washington Choc. Co. v. Kent, 28 Wn.2d 448, 183 P.2d 514 (1947).  Generally the landlord did not have a right to enter or otherwise disturb the tenant and unauthorized entry by the landlord was ". . . as much trespass as entry or intrusion by a stranger."  Anno:  49 Am.Jur. 2d "Landlord and Tenant," § 226, see, Nordgren v. Lawrence, 74 Wash. 305, 133 Pac. 436 (1913), andBarnes v. Bickle, 111 Wash. 133, 189 Pac. 998 (1920).  Thus at common law, in the absence of the tenant's consent or the reservation by the landlord of the right to entry in the lease agreement, the only limitations upon the tenant's right to exclusive possession were those held by the courts to be inherent in the landlord-tenant relationship.  For example, at common law the landlord was accorded a limited right of reentry to make certain repairs in emergency situations or to correct conditions for which he might be held negligent as the owner of the property.  In an early case the Washington Supreme Court held that no trespass was involved in a landlord's entry onto the premises to request the payment of rent, where the lease did not otherwise specify the place for payment.  Cline v. Altose, 158 Wash. 119, 290 Pac. 809 (1930).

            There was some uncertainty about the right of entry by the landlord to show the premises for sale or for future rental after expiration of the existing term.  It was generally held that the landlord had no such right in the absence of the tenant's consent unless that right was provided by statute or reserved under the terms of the lease.  However, at least one jurisdiction has held that where the tenant has given notice of his election to terminate a month-by-month tenancy, the tenant may be liable for damages if he refuses to allow the landlord entry during the final month of the tenancy for purposes of showing the premises, provided  [[Orig. Op. Page 5]] that the landlord seeks such entry at reasonable times.  Gronek v. Neuman, 52 Ill.App. 2d 250, 201 N.E. 2d 617 (Ill. App. 1964).

            At this point the provisions of RCW 59.18.150 become significant.  This section of the "Residential Landlord-Tenant Act,"supra,2/ reads as follows:

            "(1) The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.

            "(2) The landlord may enter the dwelling unit without consent of the tenant in case of emergency or abandonment.

            "(3) The landlord shall not abuse the right of access or use it to harass the tenant.  Except in the case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of his intent to enter and shall enter only at reasonable times.

            "(4) The landlord has no other right of access except by court order, arbitrator or by consent of the tenant."

            To a large extent this statute codifies the existing common law in this state, recognizing the general right of the tenant to "quiet enjoyment" of the premises.  While the "two-day" rule of the statute was not known at common law, the prohibition of subsection (4) of RCW 59.18.150 on entry by the landlord under circumstances other than those enumerated in the statute may eliminate the limited freedom of entry previously accorded the landlord in other situations at common law.  Hereafter, any  [[Orig. Op. Page 6]] other right of access must be conferred by court order, arbitration, or the consent of the tenant on a case by case basis.3/

             With this enactment it may be easier to charge a landlord with knowledge that he is not licensed or privileged to be on the premises ‑ a requisite element to a criminal trespass prosecution under RCW 9.83.080, supra.  Prior to the act the respective rights of landlords and tenants had to be derived from case law.  Thus, a person charged under the criminal trespass statute might more readily have demonstrated that he was unaware that he had no license or privilege to be on the property.

            It is essential to remember, however, that RCW 59.18.150 not only addresses itself to situations where the landlord is not permitted on the premises but it speaks of converse situations as well.  Thus, in a given case the landlord may be able to demonstrate that he was not knowingly a trespasser by recourse to the language of this statute.  For example, the landlord is permitted by it to enter without the consent of the tenant in cases of emergency or abandonment.  While the meaning of abandonment may be relatively clear, the same is not necessarily true in the case of emergency.

            Likewise, the requirement of two days' notice of a proposed entry, as set forth in subsection (3), is lifted not only in cases of emergencies but also in situations where it is "impractical" for the landlord to give such notice.  Would, for example, the landlord's inability to arrange for a service or repairman to come onto the premises at least two days in advance be a sufficient example of an impractical situation?  There is certainly no answer given on the face of the statute.

            Thirdly, the statute provides that the tenant is not to withhold consent unreasonably in cases where the landlord wants to show the premises to other potential tenants or prospective purchasers.  It is thus by no means clear that the landlord is still precluded from entering the premises where the tenant, in fact, unreasonably withholds his consent or where the landlord believes that the tenant has acted  [[Orig. Op. Page 7]] unreasonably.  While it is arguable that the landlord's only remedy in such a case may be one of a suit for damages rather than for entry onto the premises, the landlord would appear to have a possible defense to a charge that he was knowingly on the property without license or permission for such entry until this question is resolved (presumably through judicial decision).

            These observations respecting the potential impact of RCW 59.18.150,supra, upon the ability of a prosecutor to prove the requisite element of knowledge under RCW 9.83.080 will not, of course, alter the conclusion that a landlord, subject to the availability of the defense which we will next consider, may be subject to prosecution for criminal trespass under that statute; however, such considerations may affect the ultimate likelihood of such a prosecution actually being brought.

           Question (2):

            Repeated for ease of reference, the concluding paragraph of RCW 9.83.080 states that:

            "It is a defense to prosecution for criminal trespass under this section that (a) the building or occupied structure referred to in subsection (1) above was abandoned, or (b) any place or premises referred to in this section were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises or (c) the actor reasonably believed that the owner of any of the places or premises referred to in this section or other person empowered to license access thereto would have licensed him to enter or remain or (d) the actor had possession of the premises originally under a landlord-tenant relationship or as mortgagor or vendee on a real estate contract."  (Emphasis supplied.)

            At present, there are no decisions which have interpreted the meaning of this provision.  When the statute was enacted in 1969, the defense now provided for in clause (d) was added in an amendment by the house to a senate bill without explanation in the legislative history of the bill.  The issue you have raised is whether this clause was intended to establish a defense that would be available to both landlords and tenants, or only to one or the other.  Since the defense runs  [[Orig. Op. Page 8]] in favor of one "originally" in possession of the premises under a landlord-tenant relationship, the identity of the person with original possession under that relationship becomes significant.

            Conceptually, the landlord may be deemed to have had possession of the premises at the instant the landlord-tenant relationship was created, but absent a reservation in the lease agreement the tenant is generally regarded as having possession when that relationship comes into being.  Accordingly, where the tenant takes possession at the inception of the relationship, the above quoted language of RCW 9.83.080(3)(d) would appear to provide a defense to the tenant alone and not to his landlord.  The tenant who may, therefore, be holding over wrongfully, and knowingly, or who may return to the premises after the expiration of the tenancy for such purposes as reclaiming his possessions, is thus insulated from prosecution for a criminal trespass ‑ although he will be subject to other civil remedies available to the landlord.  The landlord, however, is not so insulated from such a prosecution.

            In addition, such an interpretation of this last clause of the statute as affording a defense to a tenant but not to his landlord finds some support in the parallel treatment given by it to mortgagors or vendees.  Such persons are in an analogous position to that of a tenant, and under a mortgagor-mortgagee or vendor-vendee relationship they may be deemed to have "original" possession of the premises in question.

            It is at least clear that in the area of property sales, the legislature did not intend to extend the defense to sellers or mortgagees, but instead, to remit them to such civil remedies as they might have where they should in fact, be entitled to regain possession of premises, e.g., through actions of ejectment or foreclosure.  Undoubtedly, the ambiguity in this part of the statute might have been removed by a simple reference to "tenant" like that made to "mortgagors" or "vendees" rather than to those "originally in possession" under a landlord-tenant relationship.  However, a construction of the statute which withholds the defense from landlords will encourage the resort to civil remedies such as wrongful detainer.  This interpretation is, therefore, consistent with the long-standing policy of requiring landlords to reenter the premises pursuant to judicial process rather than through forcible reentries.

             [[Orig. Op. Page 9]]

            In so concluding, however, we should also note that the unavailability to a landlord of a defense under clause (d) of the statute does not necessarily leave him without recourse under other parts of the same subsection.  An argument can be made, for example, that the defense of entry onto abandoned premises under clause (a) is available where the tenant has moved out.  Under clause (c), a landlord can conceivably argue that his entry on the premises was with the reasonable belief that the tenant would have given his consent under the particular circumstances.

            Finally, it should be noted that the enactment of RCW 9.83.080,supra, has not displaced the criminal sanctions set forth in the forcible entry and unlawful detainer statutes.  See, RCW 59.12.010 and RCW 59.12.230, which continue to provide as follows:

            "Every person is guilty of a forcible entry who either‑-(1)  By breaking open windows, doors or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstance of terror, enters upon or into any real property; or‑-(2)  Who, after entering peaceably upon real property, turns out by force, threats or menacing conduct the party in actual possession."  (RCW 59.12.010.)

            "Every person who shall unlawfully use, or encourage or assist another in unlawfully using, any force or violence in entering upon or detaining any lands or other possessions of another; and every person who, having removed or been removed therefrom pursuant to the order or direction of any court, tribunal or officer, shall afterwards return to settle or reside unlawfully upon, or take possession of, such lands or possessions, shall be guilty of a misdemeanor."  (RCW 59.12.230.)

            When these statutes are applied to an unlawful entry, the defenses provided for under RCW 9.83.080 are not available because a different crime is involved.  The court of appeals has recently construed the forcible entry statutes inState v. Galen, 5 Wn.App. 353, 487 P.2d 273 (1971), holding that the term "force or violence" requires a showing that the entry resulted in a breach of the peace or "conduct tending  [[Orig. Op. Page 10]] to create such a breach" at the time of the entry.  By reason of this definition merely an unauthorized entry through an unlocked door would not justify prosecution as a violation of RCW 59.12.230.4/   This fact, however, would not preclude a tenant under such circumstances from enforcing suchcivil remedies as are accorded to tenants under the forcible entry statutes, RCW 59.12.020 and RCW 59.18.370, et seq., and at common law.  See,Nordgren v. Lawrence, 74 Wash. 305, 133 Pac. 436 (1913);Barnes v. Bickle, 111 Wash. 133, 189 Pac. 998 (1920).  See, also, the discussion on pp. 12-13, infra.  The words "force or violence" appear in connection with the criminal sanctions, but not the civil remedies, under these laws.

            Question (3):

            By your third question you have inquired as to the circumstances under which a landlord or one acting under his authority may be subject to prosecution for burglary by reason of an unlawful entry into the premises of his tenant.

            Under our present criminal code, there are two degrees of burglary.

            RCW 9.19.010 provides that:

            "Every person who, with intent to commit some crime therein, shall enter in the nighttime, the dwelling house of another in which there shall be at the time a human being‑-

            "(1) Being armed with a dangerous weapon; or

            "(2) Arming himself therein with such a weapon; or

            "(3) Being assisted by a confederate actually present; or

            "(4) Who, while engaged in the nighttime  [[Orig. Op. Page 11]] in effecting such entrance, or in committing any crime in such building or in escaping therefrom, shall assault any person; or

            "(5) Who, with intent to commit some crime therein, shall break and enter any bank, post office, railway express or railway mail car, shall be guilty of burglary in the first degree and shall be punished by imprisonment in the state penitentiary for not less than five years."

            RCW 9.19.020 then states that:

            "Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years."

            Both of these statutes are then supplemented by RCW 9.19.030, which provides that:

            "Every person who shall unlawfully break and enter or unlawfully enter any building or structure enumerated in RCW 9.19.010 and 9.19.020 shall be deemed to have broken and entered or entered the same with intent to commit a crime therein, unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal intent."

            There can be no question but that the existence of the landlord-tenant relationship does not of itself preclude possible prosecution of a landlord for burglary.  Courts in other jurisdictions have so held.  See, e.g., Bradley v. State,  [[Orig. Op. Page 12]] 244 Ind. 630, 195 N.E. 2d 347 (1964), as follows:

            ". . . it is well established . . . that a landlord (the owner of the property) can be guilty of burglarizing the premises of his tenant (the possessor of the property) by breaking and entering without the permission of the tenant."  (Citations omitted.)

            Moreover, that conclusion of the Indiana court proceeds upon the same reasoning as was used by our supreme court in State v. Klein, 195 Wash. 338, 80 P.2d 825 (1938), which holds thatoccupancy or possession, as well as actual ownership, is protected against burglars or unauthorized intruders.  This brings us, then, to the statutory presumption in RCW 9.19.030, supra, which requires a person accused of burglary, where he or she has broken5/ and entered a building, to bear the burden of establishing that the entry was not made with criminal intent.

            We do not believe that mere proof that an intruder charged with burglary was the landlord of the tenant whose premises were unlawfully entered would be sufficient to overcome this statutory presumption of criminal intent.  In other words, the presumption is applicable even in a landlord-tenant situation.  Nevertheless, it must be acknowledged that the natural inferences which can be drawn from the existence of that relationship could well increase the chances for a successful defense to a burglary charge and for that reason influence a prosecutor's decision concerning the filing of such a criminal charge.

            This completes our consideration of your three specific questions.  In addition, however, you have also expressed a concern that the "Residential Landlord-Tenant Act of 1973," while prohibiting unauthorized entry of a landlord except under certain conditions, provides rights to tenants  [[Orig. Op. Page 13]] without corresponding remedies.  As discussed above at page 10, however, this act did not intend to cut off tenants from remedies previously available to them in actions such as forcible entry.  Indeed, specific sections of the act deal with procedural considerations relating to such actions.  See, RCW 59.18.370, et seq.

            While a major objective of this 1973 act was to provide the tenantas a defendant in actions such as those for wrongful detainer with a wider range of defenses, equitable as well as legal, than those previously available to him before its enactment, the tenant as a plaintiff may still avail himself of civil remedies which have always been available, including not only the forcible entry remedies discussed above but, also, possibly the private remedies provided by the consumer protection act, chapter 19.86 RCW in an appropriate case.

            We trust the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General