Can you be charged with breaking and entering if the door was open, and the owner of the property is deceased?

Question

Imagine you were walking with a friend and you needed to change clothes. You pass by an abandoned house with a small building in the front yard, and the building door was already open. You go in the building and your friend stands in the doorway while you change. A cop stops and decides to take you both to jail for breaking and entering. Also, the property owner is deceased, and no one owns it or lives there. Could you get the breaking and entering charge dismissed?

Answer 1

Who would reasonably believe what?

• One suspect entered the home of other persons (even deceased, there would be an estate with property rights). A suspected accomplice was staying at the door, somewhat sheltered but potentially able to warn of discovery. Let's assume that they honestly did not plan any theft.
• A police officer notices the event and arrests the suspects. Given the description above, it seems quite reasonable for the officer to assume that they were starting a burglary and got foiled before they could take anything.
• As the case proceeds, the suspects tell their story to the police, prosecutor, and court. Those may believe the story, or not. If they believe it, that might leave trespass. Depending to the circumstances (time of day, plausible explanation for passing the house, criminal record, tools or just an empty bag ...) the suspects may appear guilty when they never did plan to steal anything.

The usual criminal standard is beyond reasonable doubt. That does not mean any story the defendants tell must be believed.

Answer 2

canada

It seems that your scenario is set up to ask whether the "breaking" element of breaking and entering with intent can be met by simply walking through a doorway.

In Canada, the Criminal Code contains a deeming provision that essentially recognizes "constructive" breaking. Section 350 says:

a person shall be deemed to have broken and entered ... if he entered without lawful justification or excuse by a permanent or temporary opening.

See for example, Johnson v. The Queen, [1977] 2 S.C.R. 646 where an accused entered through a doorway where no door had been installed and no barrier was in place. This was enough to meet the "breaking and entering" element of the offence.

Despite the shorthand ("breaking and entering") the offence does require more to be fully completed: it requires at least the intent to commit an indictable offence when inside the place.

Answer 3

scotland

"Breaking and entering" is not a crime, but there is a common-law offence of "theft by housebreaking", which is a sort of aggravated theft. There is also "housebreaking with intent to steal" if theft did not take place, but the intent can be inferred from context, e.g. disabling an alarm and being found with tools (Burns v Allan [1987] SCCR 449). Being in somebody's house in order to commit a crime other than theft does not count; HM Advocate v Forbes [1994] JC 71:

It is not a crime for a person to enter another man's house. If damage is done to the property that may be regarded as criminal, but the act of entering the house is not in itself a crime.

The "house" element is met by any enclosed building, not just a dwelling. The ownership of that building is not relevant. (As pointed out in comments to the question, if an owner of the building had died, then ownership would pass to somebody else, rather than leaving it without an owner.) An outbuilding of a dwelling, as in the question, would count, if it was sufficiently constructed so as to protect the interior.

For "breaking", walking in through an open door does not count. There is this element if "the security of the dwelling has been overcome by violence" (Alison, Practice of the Criminal Law of Scotland, 1832). Alison says that it is not housebreaking to turn a doorhandle to release the latch, but it is if the latch is forced open by striking the door. Breaking can also be proved by entry by "extraordinary or unusual methods", such as coming down a chimney, or using a ladder to reach an upstairs window. Other methods of overcoming security include where the thief is quietly let in by an accomplice, or where he rings the doorbell and then pushes his way inside once the occupant opens the door.

So if the door is already open, and there is no theft or intent to steal, then the elements of those offences cannot be made out. In the alternative, somebody might be charged with "breach of the peace" (suggested in Forbes), which is a fairly catch-all sort of offence for alarming or disturbing conduct.

Criminal trespass can arise if the person stays on the property for a long time; the Trespass (Scotland) Act 1865 applies for someone who "lodges in any premises [...] being private property" without the appropriate consent. Being present only briefly is not "lodging".