Trespass

Writs of Possession in Three Sentences

A writ is a written court order that commands the person to whom it is directed to perform, or refrain from performing, a specified act.

texas writ of possession

A writ of possession is a command often directed to a peace officer to remove people or items from property, or to dispossess people of property, and to deliver possession to another person.

Writs of possession may be issued in eviction cases, trespass to try title lawsuits, eminent domain actions, and other legal proceedings.

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

Denied Access to Personal Property in Your Residence/Former Residence?

texas denied access residence retrieve personal propertyThis issue often arises in the common property, landlord-tenant, family law, and foreclosure arenas.

 

A person who has been denied access to his or her residence or former residence may apply to a Texas Justice Court for an order authorizing access to retrieve personal property under Chapter 24A of the Texas Property Code.

The applicant must:

  1. certify that the occupant of the residence has denied the applicant access to the residence;
  2. certify that the applicant is not prohibited by law (including a protective order) from entering the residence;
  3. allege that the applicant, or the applicant’s dependent, requires one or more of the following personal items contained in the residence: (a) medical records; (b) medicine and medical supplies; (c) clothing; (d) child-care items; (e) legal or financial documents; (f) checks or bank or credit cards in the name of the applicant; (g) employment records; or (h) personal identification documents;
  4. allege that the applicant or the applicant’s dependent will suffer personal harm if the items listed in the application are not retrieved promptly;
  5. include documentation that shows the applicant is currently, or was formerly, authorized to occupy the residence; and
  6. execute a bond payable to the occupant in an amount set by the judge.

The Justice Court may issue an order authorizing the applicant to enter the residence accompanied by a peace officer to retrieve the property listed in the application (a) on sufficient evidence of urgency and potential harm to the health and safety of any person; and (b) after sufficient notice to the current occupant and an opportunity for both parties to be heard by the Court.

What happens if the order is granted but the applicant takes personal property that isn’t expressly permitted by the  order or that isn’t owned by the applicant?

Stay tuned!

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

Trespass – Civil Liability

texas civil trespassA car jumped a roadway, curb, and sidewalk and ran into a tree, shrubs, and a brick wall owned by the plaintiff. There were erratic tire marks back on the roadway and curb. The driver was found unconscious behind the wheel. Turns out he had a heart attack and died. So the plaintiff sued his estate.

In earlier post, we discussed criminal trespass. One may also maintain a civil claim for trespass on realty.

A plaintiff proves civil trespass if the s/he owned or had a lawful right to possess property; the defendant entered that land; the entry was physical, voluntary, and intentional; and the trespass caused some injury to the plaintiff’s right of possession.

The trial judge ruled that the plaintiff should win the case as a matter of law without any need for the jury to consider the issue of the driver’s consciousness before the incident. The driver’s estate appealed. The appellate court returned the case to the trial court for another trial. The appellate court stated, “If [the driver] was unconscious or dead prior to leaving the roadway and entering upon [plaintiff’s] property, his act of entering [plaintiff’s] property could not have been voluntary.” In such an event, the plaintiff couldn’t win a civil trespass claim.

What if the driver was rendered unconscious before the accident due to intoxication?

In our Just for Fun posts, we underscore certain construction and real estate topics just for the fun of it.

Can You Shoot to Kill Santa Claus for Trespassing?

Texans love their family and their property. Many like their guns, too.

texas shoot kill trespassIf St. Nick trespasses onto your property, can you shoot to kill him for trespassing?

No, in Texas you can’t use deadly force in response to trespass. However, deadly force is not criminalized when, in some very particular circumstances, it’s used in self-defense, in defense of a third person, or to protect property.

Texas criminal law allows one to threaten force when the use of force is allowed by law in narrow situations. So maybe Santa shouldn’t be too surprised to at least see a shotgun wielded.

Please don’t shoot to kill Santa. Many children would be disappointed. Plus, his estate may have civil remedies even if your behavior isn’t criminal in nature. And I’ll bet Mrs. Claus makes a very charming witness.

In our Just for Fun posts, we underscore certain construction and real estate topics just for the fun of it.

Adverse Possession in Three Sentences

Adverse possession allows a person to claim title to real estate owned by another. Texas law defines it as an actual and visible appropriation of realty begun and continued under a claim of right that is inconsistent with, and hostile to, the claim of another person. The purpose of the law is to promote the beneficial and productive use of land.texas adverse possession real estate law

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

In Trouble for Posting “No Trespass” Sign?

trespass beach maritime water lawIn a previous post we talked about civil trespass. One must be notified that he or she isn’t supposed to enter/remain on property before a legal trespass may occur. Posting signs is one way to accomplish this.

But what if a person posts a “no trespassing” sign on property owned by another? This scenario raises a lot of questions. And it may seem far-fetched at first glance. After all, why would somebody want to restrict access to someone else’s property?

Texas favors the free and unrestricted right of ingress and egress to and from state-owned beaches. No person may display on any public beach any sign, marker, or warning, or communicate that the public beach is private property or that the public doesn’t have the right of access to the public beach.

Still, if my beach towel is spread out, please refrain from lying on it without asking first. You’ve been notified.

In our Just for Fun posts, we underscore certain construction and real estate topics just for the fun of it.

Daredevils, Purple Paint, News Producers, and Jail

file00086047112Four men were arrested last week for BASE jumping off of One World Trade Center. Here’s video footage of the jump. (The action starts at 2:48. Consider this your foul language warning.) A 16-year-old boy decided to climb to the top of the building, too — apparently because he could and had nothing better to do.

More alerted to the unwanted appeal of the building to daredevils (and those with too much time on their hands), police arrested two CNN producers last week who thought it a good idea to try to enter the property, presumably in an effort to expose its security flaws. According to this article in the New York Times, the producers were confronted by a police officer who told them to stop, but they continued anyway and tried to gain entry further down the street by scaling a fence. There were also “No Trespass” signs posted.

A person commits criminal trespass in Texas if he or she enters or remains on or in property of another without effective consent and the person had notice that the entry was forbidden or received notice to depart but failed to do so. It follows, therefore, that a person doesn’t commit criminal trespass if he isn’t notified first that he isn’t supposed to be there.

There are different ways to provide advance notice that entry is forbidden in Texas. A fence obviously designed to exclude intruders is deemed to be sufficient advance notice. Posting signs reasonably likely to come to the attention of intruders, indicating that entry is forbidden, is sufficient advance notice. And placing vertical lines of purple paint at least eight inches tall and once inch wide at certain height and spatial intervals on trees and posts on the property is deemed to be sufficient advance notice.

I’m a huge extreme sports fan. I always have been. I’m not sure that the threat of arrest is enough to stop someone who wants to jump from 1,700 feet. In fact, the threat of arrest may actually buttress the thrill of the entire activity. Still, I don’t recommend breaking the law, getting arrested, or doing something objectively unreasonable. What right-minded person would?

In our In the News series, we use an article or topic that has been featured recently in the news as a potential learning opportunity.