Adopt No-Trespassing Policy to Boost Site Security
The Alabama Association of Housing and Redevelopment Authorities (AAHRA) is cracking down on the unwanted presence of drug dealers and those engaging in criminal activity at its public housing sites. In February 2009, the 150-member association of housing authorities in the state revised its Criminal Trespass Policy. According to AAHRA, its members can adopt the model policy to help reduce criminal activity involving drugs and other activity that “threatens the peace and tranquility desired for public housing and its residents.”
AAHRA is just one organization that is using state and local criminal trespass laws to enhance security at multifamily housing sites. Mickey McInnish, AAHRA's attorney, says enforcing trespass laws would probably be just as helpful to site managers in other states as it has been to Alabama's public housing authorities.
What Is a No-Trespassing Policy?
AAHRA's model no-trespassing policy is similar to policies used successfully in many other states. Under no-trespassing policies like Alabama's, a housing authority claims the right under a state or local criminal trespass law to issue an oral or written no-trespassing warning for a specified amount of time to any nonresident who has no legal right to be on the authority's property, or who is not an invited guest of a resident.
In the AAHRA policy, the warning can be given only to a nonresident who is on private housing authority property, who also:
Loiters, engages in, or has a verbal or physical confrontation with law enforcement personnel, residents, guests, or authority personnel, but no criminal activity occurred (no-trespass period is six months);
Engages in criminal activity on housing authority property that is nonviolent and causes no physical injury to another person (no-trespass period is one year);
Engages in criminal activity on the property in which a deadly weapon was used or threatened to be used, or in which a physical injury to another person resulted (no-trespass period is three years);
Has been involved in or suspected of being involved in drug-related activity on the property (no-trespass period is three years);
Engages in, or has engaged in, violent activity on or off the property, and during the course of an investigation was found to be listed with the National Crime Information Center or state criminal databases, as a possible dangerous person (no-trespass period is during the listing plus one year after the individual has been removed from the list);
Has been involved in any criminal or other activity that occurred on the property that interferes with the quiet and peaceful enjoyment of the residents (no-trespass period is six months to three years, depending on the circumstances);
Damages the property of the authority (no-trespass period is one year); or
Is subject to a lifetime registration requirement under a state sex offender registration program (no-trespass period is lifetime).
According to McInnish, when a site manager or resident identifies a possible trespasser on the property, the manager notifies the police. The police serve the written notice and ask the individual to leave the premises. Anyone who receives the no-trespassing warning but returns to the site will have his no-trespassing time extended and is subject to arrest for criminal trespass.
To see the full text of AAHRA's model no-trespassing policy, go to http://www.aahra.org.
PRACTICAL POINTER: A trespass warning does not have to be issued directly by a site owner to be valid. An owner can ask the police to give notice to possible trespassers. In fact, police advise owners not to confront suspicious persons directly, but to call the police. If police do not respond, you may have to hire private-duty security officers to escort trespassers from the property. Ask your attorney if you need to give the police a written authorization to enter your property in the event of suspicious activity in order to enforce specific trespass laws when you are not present to assert your rights.
Keep Clear Documentation
The AAHRA-member housing authority maintains a copy of the notices and related documents, and the police patrolling a site always have an updated list in their on-board computers of persons barred from the property. Lee Eastman, president of AAHRA, says the police have the right to arrest people on the list, and, in his experience, judges take the offense seriously and confine the offenders. McInnish says the policy has been fully tested in Alabama courts and found legally sound.
According to the policy, anyone who receives a no-trespassing notice can request to meet with the housing authority to discuss the circumstances surrounding the notice and have it shortened or revoked. If the agency does shorten or lift the notice, it must do so in writing, in a document signed by all the parties involved. The housing authority is responsible for notifying local law enforcement of the shortening or lifting of the notice.
Under special circumstances and written application, the housing authority can allow the person who was given the no-trespassing warning special permission to be on the property. However, the guest will need to keep a special permission letter with him during his visit.
How You Can Use Trespass Laws
State and local trespass laws vary, but essentially they all boil down to the idea that someone is on private property without rightful permission to be there. In Alabama, a person “enters or remains unlawfully” in or upon premises when he is not licensed, invited, or privileged to do so.
There are both civil and criminal trespass laws. Criminal trespass laws are enforced by police; civil trespass violations require a property owner to go to court to collect any damages the trespasser may be responsible for. You may be able to assert your rights under one or both types of law. Talk to your attorney to be sure you understand your rights and the rights of your residents.
McInnish says property owners of all kinds invoke trespass laws to deal with unwanted visitors and troublemakers. Security officers at shopping malls, for instance, frequently use trespass laws. A private apartment building owner has a right to exclude trespassers from the property—that is, people who are on the site without a legitimate reason or invitation.
Attorney Margaret McFarland says, “Section 8 owners are private owners, and have the same rights to prevent trespass, call the police, or fence folks out that any private owner would have.” Public housing authorities have special issues because courts have historically treated them like public entities that might be required to allow the public to access their properties. Section 8 sites, however, are unquestionably private property.
Tips for Putting Policy into Practice
Here are some tips for putting a no-trespassing policy into practice:
Post signs. Because trespass means entering private property without the consent of the owner, some form of warning or notice is normally required to show that an area is private rather than public. McFarland says that the presence of “No Trespassing” and “Private Property” signs and posted business hours helps establish that a site is not freely open to the public.
Issue statement. If you see nonresidents loitering and they cannot name a resident they are visiting, then they are trespassing and you can tell them to leave, says McFarland. And someone who enters property with permission but stays after he has been told to leave is committing trespass. An oral or written statement to leave the premises can be used to support a trespass claim. Your site's security staff should document any incidents in which they give an oral notice to someone to leave the premises. For an example of a written statement you can adapt and issue, see our Model Letter: Give Trespasser Written Warning. You should also keep on file any police reports documenting trespassing incidents.
Adopt lease language. McFarland advises that while Section 8 project-based managers don't need a policy as detailed as AAHRA's, they do need a way of dealing with disruptive guests and barring them from the site. She suggests putting clear terms right in the lease. “Make sure your lease has the provision that guests or visitors who loiter outside units will be issued notices not to trespass and that management deems that to be trespass.” Show this Model Lease Language to your attorney before using it in your leases.
Model Lease Language
The owner reserves the right to prohibit soliciting, loitering, and/or trespassing on the property. The owner reserves the right to exclude nonresidents, including guests of the residents, who cause disturbances at the site. Any person who declines to leave the premises after being directed to leave will be subject to arrest and prosecution for criminal trespass under state law.
Barring Residents' Guests
Residents of your site have broad rights to invite guests of their choice into their homes. As attorney Jim Schaafsma of the Michigan Poverty Law Program notes, the resident gets to decide who can visit him, even if you object to the person. An owner generally does not have the right to bar a person from the site, even from common areas. In addition, site policy on overnight guests cannot be overly restrictive or unreasonable. You should spell out guest policies in house rules.
However, as site manager, you can bar a resident's invited guest from coming to the site if that person breaks the rules in the lease, including house rules, or breaks federal, state, or local law. Even then, to do so, you must give a written notice to the guest that clearly states why he is no longer allowed to visit the site. Be sure to give the resident a copy. You may need to present these documents later in court to justify a trespass violation or eviction, so keep them on file.
Generally, the resident is responsible for the way his guests behave. Guests must follow house rules, lease rules, and applicable laws. As site manager, you may evict a resident based on the actions of a guest. HUD's model multifamily lease allows termination “if the Landlord determines that the tenant, any member of the tenant's household, a guest or another person under the tenant's control has engaged in criminal activity, regardless of whether the tenant, any member of the tenant's household, a guest or another person under the tenant's control has been arrested or convicted for such activity.”
EDITOR'S NOTE: Under HUD's model multifamily leases, you must allow residents and resident organizers to conduct activities on site that are related to the establishment or operation of a resident organization set up in accordance with HUD requirements.
Lee Eastman: President of AAHRA, Auburn, AL; (334) 821-2262.
Margaret McFarland, Esq.: Director, Colvin Institute of Real Estate Development, Graduate Programs, School of Architecture, Planning and Preservation, University of Maryland, College Park, MD 20742; (301) 405-6790; firstname.lastname@example.org.
Mickey McInnish: Counsel to AAHRA, Montgomery, AL; (334) 467-6184.
Jim Schaafsma: Attorney, Michigan Poverty Law Program, Ann Arbor, MI; (734) 998-6100.
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