Can You be Charged with Burglarizing Your Own Residence?

It was past midnight in the town of Farmington, Colorado when shouting erupted in the 1400 block area of North Laguna Avenue. A young woman had arrived home to find her back door smashed open, and she had a good idea of who might have been responsible—her ex-boyfriend, semiprofessional MMA fighter Stephen Malouff. Malouff and his girlfriend had been living together in the residence, but Malouff had left the house after the two of them had gotten in an argument.

Frightened by the idea that her upset ex was near the house, the young woman fled the residence and hid in her vehicle. Sure enough, Malouff appeared on the scene soon after, spotting his former girlfriend and running towards her. After Malouff struck her vehicle angrily with his hands, the woman fled the scene.

Suddenly, the screech of sirens filled the air. Farmington police officers had been dispatched to a suspected burglary, and had located Malouff’s vehicle in the neighborhood. Upon seizing Malouff and searching his vehicle, the officers found a black bag and a bottle of alcohol.

Now, Malouff is facing residential burglary charges, as well as breaking and entering, felony criminal damage to property, resisting arrest, and his third DUI offense. However, Malouff’s lawyer, Eric Morrow, says the residential burglary charges are unjust.

According to Morrow, Malouff lived at the residence he allegedly burglarized with his girlfriend. The couple had been having relationship problems, and Malouff had only returned after their fight to pick up his belongings.

As the criminal defense attorney told reporters from The Daily Times, “You can’t burglarize your own residence. You can’t break into your own residence.”

Residential Burglary Laws in Colorado

Stephen Malouff’s situation raises an interesting question—can you be charged with burglarizing a home that you own, rent, or usually reside in?

Depending on the circumstances, the answer could vary. Under Colorado law, burglary occurs when a person enters into a property without permission intending to commit a crime inside. In most burglary cases, the property in question belongs to someone else. But in certain cases, a person could be charged with burglarizing or trespassing on their own property. The issue typically arises in domestic violence cases like Stephen Malouff’s, as well as tenant-landlord disputes.

Below, we’ve listed some of the reasons you could be charged with burglarizing your own home in Colorado.

Property rights. There are two types of property rights under US law—ownership rights and possessory rights. Though the two terms are often confused, there are slight differences between the two. For instance, a landlord may have ownership rights as the owner of an apartment home, but he or she does not have possession rights because the landlord cannot enter the home any time he or she pleases. The tenant has possession rights, but not ownership rights, since he or she does not own the property. If you have ownership of a property, but not possession, you could be charged with burglarizing if you attempt to enter that property without permission with the intent to commit a crime.

Shared home. If you share a home with your spouse or partner, you both have a right to enter that property. But what happens if one of you moves out—perhaps after a fight, as in Stephen Malouff’s case? In certain situations, courts may decide to find you guilty of a criminal act if you break into a home you do not currently live in without permission, even if your name is still on the lease.

Protection or restraining order. In Colorado, a protective order—sometimes referred to as a restraining order—can prohibit you from entering your home, even if you are the legal owner.

The laws surrounding burglarizing your own property are not black and white, and often it’s up to the court to decide whether you entered a property unlawfully or not. That’s why it’s so important to consult with an experienced burglary defense lawyer who is familiar with Colorado-specific laws if you find yourself facing burglary charges. Your attorney can help you understand your rights and devise an aggressive strategy for your defense. With their guidance and legal representation, you are in a better position to have your residential burglary charges reduced or dropped.

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