Tuesday, February 4, 2020

Is An Abandoned Farmhouse a “Dwelling”?


Farmers and ranchers often own property that is in remote locations and is out in the open where it is potentially subject to theft and/or burglary.  Sometimes, the old homestead remains standing and is used for storage or some other function other than as a residence.  Protecting personal property that is contained in such a building presents the issue of what the proper manner of providing protection might be.  See, e.g., Katko v. Briney, 183 N.W. 2d 657 (Iowa 1971)Another issue involves what the property classification of the crime is if the dwelling is broken into and items are stolen.

The crime classification of burglary of an old farmstead – that’s the topic of today’s post. 

Common Law and Modern Approaches

The common law defines burglary as the trespassory breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony. The intent to commit a felony must accompany the breaking and entering. Thus, under the common law approach, a person who did not have the intent to commit a felony at the time of breaking and entering someone else's dwelling could not be convicted of burglary even if the perpetrator had a change of heart and stole something once inside the home. On the other hand, a defendant who intended to commit a felony at the time of breaking and entering a dwelling could be convicted of burglary even if nothing was stolen.

Modern burglary statutes in many jurisdictions eliminate most of the common law elements of burglary.  Prior to its repeal effective July 1, 2011, Kansas law defines “burglary” as “knowingly and without authority entering into or remaining within any...building, manufactured home, mobile home, tent or other structure which is not a dwelling, with the intent to commit a felony, theft or sexual battery therein...”.  Kan. Stat. Ann. § 21-3715(b). That statutory language had been held to be inapplicable to an open-faced lean-to attached to the side of a workshop, because the lean-to did not provide an enclosed space for the security of persons or property contained therein. State v. Moler, 2 P.3d 773 (Kan. 2000).    

The Model Penal Code (MPC) defines burglary as “the entering of a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”  Under the MPC, burglary is a felony if it is committed in another person's home at night or if the perpetrator “purposely, knowingly, or recklessly” injured another person or attempted to do so or “is armed with explosives or a deadly weapon.”  Model Penal Code §221.1.

When Is a Farmhouse Not a “Dwelling”?

In State v. Downing, No. 116,629, 2017 Kan. App. Unpub. LEXIS, 1092 (Kan. Ct. App. Dec. 15, 2017), aff’d., No. 116,629, 2020 Kan. LEXIS 6 (Kan. Sup. Ct. Jan. 24, 2020), the State of Kansas charged the defendant with burglary of a dwelling and attempted theft of property valued at less than $1,000. A jury found the defendant guilty of both crimes, and the court ordered the defendant to a Community Corrections facility for 24 months. The underlying sentence was 21 months in prison for burglary and six months in jail for theft, with the sentences to be served concurrently.

On appeal, the appellate court reversed. The appellate court noted that K.S.A. §21-5807(a)(1) (the replacement statutory provision for Kan. Stat. Ann. §21-3715) defines burglary as “without authority, entering into or remaining within any… [d]welling, with intent to commit a felony, theft, or sexually motivated crime therein.” “Dwelling” is defined as a building that is used or intended to be used as a human habitation, home, or residence.

The appellate court noted that the residence at issue was a 100- year old farmhouse that was used to store personal items that had been vacant for over two years prior to the alleged crime, and the owner had no intent to again live in it or rent it. Instead, it was used as storage space. Accordingly, the farmhouse did not meet the statutory definition of “dwelling” that was used or intended to be used as a habitation, and the State failed to prove beyond a reasonable doubt that the house was a dwelling. The appellate court reversed the defendant’s conviction for burglary of a dwelling and vacated her sentence.

On further review, the state Supreme Court affirmed on the basis that the evidence revealed that the landowner lacked the present intent to use the farmhouse as a dwelling. The Supreme Court also rejected the State’s argument that the defendant should have been resentenced because that issue was not raised below. 


The recent Kansas Supreme Court decision points out another interesting facet of agricultural law.  An old farmhouse that is no longer occupied as a residence may not qualify as a “dwelling” under state law defining burglary of a dwelling.  But, remember, what constitutes a “dwelling” for this purpose is tied to a particular state’s statutory definition.  Just another thing to keep in mind when considering steps to be taken to protect farm property contained in such a structure from those that would attempt to steal those items. 


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