Case Law Summaries

State of New Jersey v. Scott

• Opinion Date: July 24, 2001
• Real Property Law
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DWELLINGS—For purposes of the criminal trespass statutes, a vacant residential home that is available and suitable for rental and occupancy is a “dwelling.”

After entering a vacant apartment unit to prepare it for rental, the superintendent of the apartment complex observed a man who had been unlawfully living in the unit. The unit was empty except for major appliances, but the water and electricity services were running. The police arrested the man, charging him with third degree burglary. At trial, defense counsel moved to dismiss the burglary charge, arguing that the apartment was vacant at the time of the incident. The lower court denied the motion concluding that the apartment was not vacant because it contained carpeting, plumbing, pipes, and appliances. The jury found that the man was not guilty of third degree burglary, but convicted him on the lesser charge of fourth degree criminal trespass. The man appealed. The Appellate Division reversed the fourth degree criminal trespass charge and directed entry of the lesser charge of disorderly persons offense of criminal trespass, reasoning that the State failed to prove that the apartment unit constituted a “dwelling,” a required element of the offense of fourth degree criminal trespass. The Appellate Division recognized that a dwelling is “a structure that must be either occupied by people who live there or who have an immediate right of occupancy.” Here, the Court found that because no tenant was living in the apartment at the time of the trespass, no one actually occupied the apartment or had the immediate right to occupy it. The Supreme Court granted the State’s petition for certification. The Court began by recognizing that “a person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof. An offense under this subsection is a crime of the fourth degree if it is committed in a school or in a dwelling, otherwise it is a disorderly persons offense.” The Court recognized that the legislature did not define the term “dwelling.” Accordingly, the Court reviewed relevant case law and concluded that residential homes, including apartments, whether occupied or not, constitute a dwelling. However, where a residential home is unoccupied for approximately one year and has unworkable utilities, the home may lose its “dwelling” status. The Court also recognized that the length of time that a residential home is unoccupied is merely one factor in the analysis. “Instead, the critical inquiry is whether the residential home is available and suitable for rental or occupancy. When an apartment unit is in between rentals, the presumption is that the apartment is maintained by the landlord who is seeking new tenants. If these facts are proven, then an apartment unit is a dwelling for purposes of the criminal trespass statute.” Here, the apartment unit was vacant for only about one month, the utilities were fully functional, and the landlord was actively seeking to place a new tenant in the apartment unit. On these facts, the Court concluded that the apartment unit was a dwelling for purposes of the criminal trespass statute.

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