Defense of Property

Fundamentals of Criminal Law by Adam J. McKee

Property defense laws enable individuals to protect their property within certain legal parameters. Understanding the nuances of these laws can be crucial for both property owners and legal professionals. Here, we’ll delve into the types of property, what the Model Penal Code says about property defense and the constitutional limits to using deadly force in protecting property.

Types of Property: Real vs. Personal

In legal terms, property is generally divided into two categories: real property and personal property. Real property refers to land and anything that is permanently attached to it, commonly known as “real estate.” On the other hand, personal property consists of movable objects that a person owns or has lawful control over. Real property usually refers to houses, but modern statutes often extend special rights and protections to other dwellings like apartments and mobile homes.

The Model Penal Code on Property Defense

The Model Penal Code (MPC) serves as a guide for state laws concerning property defense. According to the MPC §3.06(1)(a), “the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property.” Notably, the MPC allows the property owner to chase a thief and recover stolen personal property. However, both the MPC and most states generally do not authorize the use of deadly force to protect property.

Constitutional Limitations: Tennessee v. Garner

It’s essential to note that any state law allowing the use of deadly force to protect property would likely be deemed unconstitutional under federal law. This stems from the U.S. Supreme Court case Tennessee v. Garner, which suggests that using deadly force to protect property could violate the Constitution.

Ejecting Trespassers

What is a Trespasser?

A trespasser is someone who is on real property without the owner’s consent. Property owners have the legal right to eject trespassers, but this right comes with limitations.

Conditions for Lawful Ejection

Most states allow not just the property owner but also an agent acting on the owner’s behalf—like a bouncer at a bar—to eject trespassers. However, the property owner or agent is typically required first to ask the trespasser to leave and give them a reasonable amount of time to comply.

The Reasonableness Standard

The amount of force used to eject a trespasser must be “reasonable” under the circumstances. This reasonableness standard means that the force should not be excessive or more than what is necessary to achieve the ejection. Violating this standard could lead to legal consequences for the property owner or agent.

Modification History

File Created:  07/17/2018

Last Modified:  09/13/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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