Q: I read with great interest your column several weeks ago in which you told the story of the poor lady who was trying to get illegal squatters out of her house and how the police wouldn’t do anything about it. I then read the story the next week that the newspaper did when the lady had to pay money to the squatters in order to get them out in a deal that the police actually brokered. I’m a retired police officer. I live in Solano County but not in Fairfield. I’m having a lot of trouble believing that the police would not remove someone who had broken into a house. I don’t ever remember the issue coming up when I was on the job. Sometimes landlords would ask us to remove a tenant who wasn’t paying and of course we couldn’t do that. But I can’t ever remember going to arrest a burglar only to leave him in the property when he tells me he lives there. Frankly, I’m discouraged by the whole thing. So my question is; if I was a police officer at the scene under those circumstances, what do you think I should do and under what authority?
A: Judging by the online comments, letters to the editor, and something like 50 emails I’ve received regarding my column and Susan Winlow’s great follow-up article, you are not alone. Judging from the response, this is becoming a growing problem. And why not? For the perpetrators it’s becoming a cash cow and they’re systematically getting better at it.
For those who have been on vacation, here’s the short version of what happened.
Lady goes to her condominium that was vacant and boarded up. She finds that people have broken in and she calls the police.
The police show up and knock on the door. The guy inside says he’s renting the house, though he offers no proof, no lease and provides no names of the landlord. There are visible signs that the property has been broken into.
The police officer tells the lady, “Nothing I can do. You’ll just have to file for an eviction.” Later, the lady has to pay the burglar $500 cash to bribe him to leave, all while a police officer stands by and Susan Winlow from the DR is there to record the whole scene.
In the weeks that have followed the column and subsequent article, I have had the occasion to discuss this situation with officers from several different departments as well as Realtors, property managers and others. Doing so has helped me gain some insight and perspective on the problem that I’d like to share.
First, keep in mind that this type of squatter, i.e. the type that moves in and treats the residence as their own, is a pretty new issue.
A Vacaville Police officer shared with me just how often officers get called to a residence where a landlord makes a demand that the tenant be hauled out for failing to pay the rent. Frankly, I had no idea this happened with such frequency.
You, along with officers currently in the field, obviously did the right thing by not removing a tenant who wasn’t paying their rent.
There is a relatively simple and fast method for a landlord to get the legal issues before a judge who will make a decision based upon well-worn landlord/tenant laws. Each side gets their day in court under civil law.
If the landlord prevails, the tenant gets removed from the property.
In light of the frequency of the occurrence, the officer’s advice that, “you need to file for an eviction,” makes sense.
Upon reflection, I’ve come to realize that the officer at the scene of the event that started this whole thing undoubtedly simply saw it as yet another tenant/landlord issue. Since the easiest way to preserve the peace was for each side to go their own separate way, the advice makes even more sense.
However, in this case and others like it, it just turned out to be the wrong advice.
Someone who breaks into a house is not a tenant. And the normal lawsuit remedies available to an owner with a tenant cannot be used. You cannot file for eviction of a trespasser.
You can file a full superior court lawsuit, which will take a minimum of one year to resolve and potentially tens of thousands of dollars.
But the landlord/tenant remedies are not available.
The duty of the police is to enforce criminal, or “penal,” law. Civil and penal law have very little to do with each other. They are two entirely different systems that seek entirely different things.
Civil law is designed to compensate someone who has been hurt, financially or otherwise, by someone else.
In criminal law, all of society is deemed to be the victim of the illegal act. That’s why when the District Attorney brings a criminal charge against someone it’s entitled, “The People of the State of California v. John Doe.
Police generally needn’t concern themselves with civil law. That’s something for the parties, their attorneys and the courts to deal with.
On the other hand, the legal system depends upon police officers enforcing the penal code.
Again, this is a new problem which I believe calls for new training and policies in the police department.
So here’s the simple explanation of the law upon which a responding officer can hang his or her handcuffs.
Penal Code 602 is the trespass section. All that is required is that someone willfully entered a property they knew wasn’t theirs with the intent to interfere with the true owner’s rights.
Pretty much a no-brainer in this case.
A basic understanding of criminal trespass law, and the will to enforce it, is all an officer needs to make an arrest.
But even setting aside 602; Penal Code 594 is the vandalism section of the law. All it requires is that someone deface another’s property. Take for example breaking a window, jimmying a door jamb or lock, damaging a wall in the interior, or writing graffiti. Any variety of these is enough for an officer to make an arrest and deliver the property to its rightful occupant.
These are just two quick and dirty Penal Code sections, either one of which would have been enough for the police officer to make an arrest.
Nobody, criminal attorneys and judges included, knows every section in the Penal Code. Like most of us, we learn what we need to know to allow us to do what we do. Chances are good that the responding officer had never run up against this problem before. But it’s fair to project that he will again.
If you own a rental property, own a property that is going to be left empty for a period of time, or are a Realtor, you’ll want to keep these Penal Code sections handy.
I’m becoming more hopeful that the Fairfield Police Department will work with Donald du Bain, our District Attorney, to develop training and procedures for officers in the field to follow when confronted with this situation.
Tim Jones is a real estate attorney in Fairfield. If you have any questions you would like answered in this column you can contact him at[email protected].