Theft of an Apartment, People v. Bell
The Court of Appeal for the Los Angeles area recently upheld a criminal conviction of a tenant for theft by someone who used another person’s name and identification to lease an apartment, and then wrote some bad checks before disappearing. In addition to convictions for identity theft and bad checks, she was convicted for theft by false pretenses. Traditionally, theft has required the element of a permanent wrongful taking of property. Joyriding, for example, had to be made a separate crime, because stealing the car without intending to keep it but rather intending to return it or abandon it later did not satisfy the requirement for theft that the taking be permanent. A lease or month-to-month tenancy is never permanent, since the tenant always expects to return the property eventually. It is only a tenancy for years.
The majority and the dissenter argued about this problem in the opinion. The dissenter characterized the occupancy of the apartment without intending to pay for it as more like joyriding. The majority observed that the time in the apartment is all the landlord has for rent and that once that time is stolen, it cannot be returned. The time in the apartment is lost permanently, satisfying that requirement. The dissent observed that the same characterization could be made for taking anything which probably is correct and might be the basis for Supreme Court review. The majority went on to argue that the only value of the apartment is the rent it produces, and the defendant had deprived the landlord of the rent permanently. That probably is the better argument, that when a person is in the business of renting out something and one steals that rental for a period of time, that lost rental period is lost permanently.
Warning: Penal Code Section 518 defines extortion as obtaining property of another, with his consent, induced by a wrongful use of force or fear; and Section 519 defines fear to include threatening to report a crime, expose a crime, or impute that someone committed a crime. You cannot tell a tenant who has gotten into an apartment with false references that he or she has committed a crime in the course of asking them to leave or pay rent. That would constitute a threat to report a crime.
The only way to use this as leverage is to actually file a criminal complaint with the county district attorney and after filing it then offer to withdraw the charge and tell the district attorney that you are satisfied with the accused’s performance if they move out or make good on the bounced check. Of course, after filing a complaint with the district attorney, you have no control over that process. If the tenant then gives you what you want, the district attorney can still proceed with the prosecution, and there is nothing you can do to stop it. On the other hand, that office might decide that it is really a private civil dispute and refuse to prosecute at all, even if the tenant refuses to move out or pay.
If you are successfully screening applicants and checking references, this problem should not arise or at least rarely. When it does, especially if the tenant is damaging the property and disturbing other tenants, the months it takes to complete a civil eviction are frustrating. In those rare and exigent circumstances, a criminal complaint for grand theft with a reference to People v. Bell in case the charging attorney is not familiar with it, could provide you the leverage you need, but only if done within the limits of the extortion law.
If you should have any questions regarding the issues discussed above or anything else, please call me or my partner and associates here at Sack Rosendin, LLP.