THE ROOMMATE FROM HELL:
WHAT IS A MUNICIPALITY TO DO?
By Jeffrey D. Greenspan and Stewart H. Diamond
Before a police officer or other municipal official
tries to help in a land-lord or roommate possession
fight, he or she needs to know the difference between a
valid arrest for criminal trespass and an unconstitutional eviction of a person for refusing to leave a property where that person has some right to remain. The
courts have broadened the protections of persons with
even slim rights in property and now require a civil
lawsuit to be brought under the forcible entry and
detainer statute1 to evict the "roommate from hell."
Many times, in today's world, a municipality is
called upon to resolve disputes between individuals
growing out of the vast variety of modern living
arrangements. These disputes sometimes come to
elected officials or managers and administrators who
are asked to provide police assistance. Often the problem is presented directly to the police department.
Surprisingly, Illinois law provides that a peaceful
person with an arguable claim to being an occupant or
resident of a premises cannot be thrown off of the
property or be arrested merely on the complaint of the
owner or other occupant of the premises. For a police
officer to do so could subject that officer, and perhaps
his or her community, to a lawsuit for false arrest under
state law and perhaps a federal civil rights lawsuit as
well.
Below are several fact patterns which a police officer in any municipality could face on a routine basis.
Understanding the legal rights of the parties will assist
your police department in understanding the difference between the crime of criminal trespass where an
arrest can be made, and an eviction, where the courts
and not the police have the final say.
Scenario #1:
John and Lisa live together. The lease is only in
Lisa's name and John has lived with Lisa for six months.
John pays one-half of the rent and one-half of the utilities but is not a party to the lease. An argument begins
and police respond to the scene. Lisa wants John removed immediately due to their not getting along. John
says "No, I pay one-half of the rent."
Scenario #2:
Brian and Tom live together. The lease is only in
Brian's name. Tom does not have a job and Brian pays
all the bills. Brian and Tom have a quarrel and Brian
wants Tom removed immediately. Tom does not want
to leave and Brian states that he will sign a complaint for
trespass.
Scenario #3:
Karen and Hunter live together in Karen's single-family residence. Karen owns the home. Hunter has
lived with Karen for two months and has placed some
furniture and appliances in the home to assist in the
furnishing of the home. Karen and Hunter had a heated
fight after Karen discovered Hunter was cheating on
her. Hunter stated that he would not leave and Karen
wants him removed.
Scenario #4:
Mary and Al have been dating for several months.
Mary lives in an apartment with the lease only in her
name. Al lives in an apartment in a nearby building. Al
spends many weekend evenings at Mary's apartment.
Al and Mary have a domestic dispute early Sunday
morning. Al is asked to leave by Mary but refuses to do
so. The police are called by Mary.
In each of these scenarios the police are called to
help resolve a domestic dispute and are asked by the
sole leaseholder or owner of the premises to have the
other person removed from the premises and arrested.
The sole leaseholder and owner is willing to sign a
complaint for criminal trespass. Can the officer lawfully arrest these individuals for criminal trespass?
Under Illinois law, criminal trespass to real property
is defined as follows:
§ 19-4. Criminal trespass to residence, (a) A person commits the offense of criminal trespass to a
residence when, without authority, he knowingly
August 1995 / Illinois Municipal Review / Page 27
enters or remains within any residence, including a
house trailer. For purposes of this Section, in the
case of a multi-unit residential building or complex,
"residence" shall only include the portion of the
building or complex which is the actual dwelling
place of any person and shall not include such
places as common recreational areas or lobbies.2
(Emphasis added.)
§ 21-3. Criminal trespass to real property, (a)
Whoever enters upon the land or a building, other
than a residence, or any part thereof of another,
after receiving, prior to such entry, notice from the
owner or occupant that such entry is forbidden, or
remains upon the land or in a building, other than a
residence, of another after receiving notice from
the owner or occupant to depart, commits a Class C
misdemeanor.3
Illinois law provides that where, at the request of the
owner, an individual refuses to leave an apartment or
house and reasonably claims to have a right to occupy
some or all of the premises, that individual cannot be
arrested for criminal trespass. This is true even where
the owner provides other competing documents which
show that he or she seems to have the right to exclusive
possession or ownership of the property.
Illinois trespass statutes must be compared with the
Illinois Forcible Entry and Detainer Statute which prohibits the seizing or taking of land by force. That statute
provides:
§ 9-101. Forcible entry prohibited. No person
shall make an entry into lands or tenements except
in cases where entry is allowed by law, and in such
cases he or she shall not enter with force, but in a
peaceable manner.4
This statute prohibits the seizing of real property by
force even by a law enforcement officer. It allows for
the entry and regaining of real property in only a peaceable manner as provided under the statute. The concept
of a "peaceable manner" means with a court order
entered in a case where the person to be evicted had an
opportunity to appear and argue his or her case. In this
context the "seizing of real property" not only means
the case of a landlord with a shotgun but also the actions
of a disappointed and angry domestic partner or
roommate. The forcible entry and detainer statute is
based upon the long-established public policy that violence and even bloodshed could result from individuals
using force and violence rather than the action of the
sheriff under an eviction order to regain possession of
real property even if possession is rightfully theirs.5
Without that eviction order, police officers cannot
lawfully provide assistance even if it is only in the form
of acting as a guard while watching an owner evict a
tenant, roommate or other person with a claim to possession. Nor can the police arrest the individual who
refuses to leave for criminal trespass on a complaint
signed by another claiming the exclusive right to possession.
In the absence of factors which will be discussed
later, a police officer must know that he or she does not
have the right to make a legal determination as to who
has a right to possess real property. That decision can
only be made by a judge. By assisting someone in this
manner, the officer could be sued for common law false
arrest and for an illegal seizure under the Fourth
Amendment of the U.S. Constitution.6
The facts of one case will help explain the difference. In People v. Evans7, a woman advertised for a
housemate to live in her home for rent. The housemate
paid a security deposit, but refused to sign a lease. After
two weeks and continuous demands by the owner to
have the housemate sign a lease, the owner asked the
housemate to leave. The housemate refused and the
police were called. When the officers arrived and questioned the housemate why she refused to leave, she did
not answer or provide any information. The housemate
was arrested and the homeowner signed a complaint
for criminal trespass. The trial court found the defendant guilty.
The Appellate Court, however, held that the individual who had moved into a house as a housemate,
Page 28 / Illinois Municipal Review / August 1995
paid a security deposit and was asked to sign a lease by
the owner, but refused to do so, could not be charged
with criminal trespass. The court held that the sole
remedy for determining a right of possession is found in
the Forcible Entry and Detainer statute. The court went
on to hold that criminal trespass is inappropriate where
the person being arrested has or had any credible argument claiming to have a right of possession to the real
property. In effect, the court said that the criminal
justice system may not be used as a mechanism for
circumventing the civil process of a Forcible Entry and
Detainer action.
A similar conclusion was reached in the case of City
of Quincy v. Daniels.8 There a mother had allowed her
son to remain on the premises for which she had a lease.
Despite the fact that the mother vacated the premises,
the son remained with the permission of his mother
over the objection of the owner of the premises. The
court held that it was inappropriate for the city, even
under its local home-rule ordinance, to charge the defendant with criminal trespass. The court held that
criminal trespass cannot be used to settle a dispute over
the right of possession of land.
In both Evans and Daniels, the criminal defendants
were occupants of the premises from which they were
arrested for criminal trespass. An occupant of a premises cannot be charged with criminal trespass and any
claim of right for possession can only be heard under
the Forcible Entry and Detainer statute in a civil, not a
criminal court. Therefore, if an individual is an occupant and claims a right to possession to the premises, or
a part of a premises for which he or she demonstrates
evidence, i.e., a significant amount of clothes in closets
or drawers, furniture, rent receipts, mortgage payments, etc., he or she cannot be arrested for criminal
trespass to land or to residence.
One may ask if the law has lost all sense of reality. It
has not, for if this unwanted live-in friend or roommate
is abusive or begins destroying the apartment or home
another set of legal rules apply. In that case, the law
allows a police officer to arrest that individual for any
other type of offenses such as disorderly conduct, or
any of the criminal offenses that may bring the police to
the scene. Certainly, where the disputes involve more
than just a question of possession of property, but also
involve threats or acts of personal harm, the officer can
look to other parts of the criminal code to control the
situation. Once released from arrest on those other
grounds, that individual still has the right to return to the
premises unless there is some court order preventing his
or her right to return, such as an order of protection or
an injunction. The police are free to inform the owner
of the premises of the existence of these other remedies
and can testify in court in support of this relief.
Let us return to the four beginning scenarios. In the
first three cases, none of the individuals could be arrested for criminal trespass. In scenario #1 John paid
half the rent and paid half the utilities and clearly was
living in and occupying the unit. In scenario #2 Brian
and Tom lived together and even though Tom's name is
not on the lease and he pays no bills, he has been
occupying the unit under an agreement "with Brian."
For Brian to have Tom removed he must file his own
civil action. In scenario #3 Hunter also has lived in the
premises by placing furniture and appliances in the
home and has a possessory claim to part of the home. If
Hunter were to state to the officer that he did not have
any interest in residing in the residence, then he might
be charged with criminal trespass. If however, he does
claim a right to be on the premises and demonstrates
some evidence of this claim, the right of possession
would need to be disposed of in a civil action and not a
criminal arrest.
In scenario #4, Al was not an occupant or resident of
the premises, nor was he in possession of all or part of
the premises. He was merely a temporary guest who
has been requested to leave the premises by an owner
or occupant. If he failed to leave he could be arrested
for criminal trespass.9
The potential liability to an officer and the municipality arises out of a claim for false arrest. That claim
can be made in two contexts. Under state tort law, the
officer and the municipality could be liable for false
arrest if the arrest was made without probable cause
and done with a deliberate intent to cause harm.10 In a
federal civil rights action, the officer could be held
liable if the arrest ("seizure") was not reasonable under
the Fourth Amendment protection against unlawful
search and seizure. The municipality might also be
liable if it could be shown that this practice was an
expression of municipal policy or that the officer had
not been properly trained.
In Soldal v. Cook County, Illinois11, the U.S. Supreme Court held that Cook County deputy sheriffs
could be held liable for an unreasonable seizure when
they stood by to prevent violence when an owner of a
mobile home park removed a trailer without an eviction order. The deputy sheriffs specifically declined to
August 1995 / Illinois Municipal Review / Page 29
arrest tor criminal trespass on the basis that the matter
was between the two parties and they were there
simply to keep the peace. Nevertheless, the Supreme
Court held this to be an unlawful seizure because the
sheriffs knew the park owner did not have an eviction
notice and did nothing to prevent the illegal eviction.
Recently, however, the Seventh Circuit has ruled in
Gordon v. Degelmann12 that an arrest for criminal trespass which may be in violation of the Forcible Detainer Act does not rise to a Federal Constitutional Fourth
Amendment Violation, so long as the officer has probable cause to make an arrest. In that case the plaintiff
claimed an ownership interest but had no documents or
evidence to support that claim. The court held that
because the officer was not provided any information
to support the plaintiff's claim of ownership, the office
had reasonable grounds, i.e., probable cause to arrest
under the Fourth Amendment for criminal trespass.
The court system will protect police if they make reasonable judgment calls based on the facts presented.
Where reasonable evidence of a right to remain on the
property is ignored by officials, liability will likely result.
Both for public policy reasons and in order to prevent costly litigation it is important for police departments to train their officers to look and ask for details
surrounding any dispute over possession. Elected or
appointed officials who may set policy which governs
these officers' actions must also be aware of these rules.
Questions must be asked such as (1) whose names are
on the lease or title, (2) how long the parties have lived
together, (3) whose possessions are on the premises, (4)
are there any pending court proceedings, (5) are there
any other documents that relate to these parties' claims
of possessions (letters, utility bills, driver's license, etc.).
The need to ask these questions and to evaluate the facts
may at times make this a tricky area of the law. With a
little help from a municipal attorney or state's attorney,
you can both enforce it and prevent individual officers
and your community from being sued.
In summary, where an individual presents some
reasonable evidence that he or she has a possessory or
occupancy right to a property, a criminal trespass
charge is inappropriate. This does not preclude officers
from charging individuals with other types of of tenses
involving their conduct while on the premises. The
owner or other occupant of the unit can only free themselves from the physical presence of their former
roommate, housemate, tenant, live-in lover or friend by
bringing a civil forcible detainer action to have the
other individual peaceably evicted from the premises.
1 735 ILCS 5/9-101, et seq.
2 720 ILCS 5/19-4.
3 720 ILCS 5/21-2.
4 735 ILCS 5/9-101.
5 People u. Evans, 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st
Dist. 1987) citing Doty v. Burdick, 83 111. 473, 477 (1876).
6 Soldal V. Cook County, 111., _ U.S. _ 113 S. Ct. 538 (1992).
7 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st Uist. 1987).
8 246 111. App.3d 792, 615 N.E.2d 839 (4th Dist. 1993).
9 People v. Brown, 150 111. App.3d 535,501 N.E.2d 1347 (3rd Dist.
1987).
10 745 ILCS 10/2-202.
11 _ U.S. _ 113 S. Ct. 538 (1992).
12 29 F3d 295 (7th Cir. 1994).
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