HOUSE/SENATE BILL NO. ____
Offered June ___, 2002 Prefiled June ____, 2002
A BILL to amend § 18.2-121 of the Code of Virginia, relating to unlawful entry. ----------
---------- Referred to Committee for Courts of Justice ----------
Be it enacted by the General Assembly of Virginia:
With respect to:
§ 18.2-121. Entering property of another for purpose of damaging it, etc.
It shall be unlawful for any person to enter the land, dwelling, outhouse or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user or the occupant thereof to use such property free from interference.
Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color or national origin of the owner, user or occupant of the property, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a mandatory, minimum term of confinement of at least six months, thirty days of which shall not be suspended, in whole or in part.
This section has been abused by a landlord to declare a tenant as a trespasser, resulting in wrongful removal of the tenant from the property
This section inflicts an undue financial, legal, and emotional cost on the tenant so accused
The intent of this section is to prevent those who are unlawfully on another person's property, and should not apply to those who have a valid lease, or deed to the property
There has been exhibited the need for clarification of the legislature's intent of this section for prosecutors and judges.
The abuse of this section violates property rights, and a fundamental right of the U.S. Constitution, as well as the primal right to one's own home by national law (Constitution) and natural law.
That § 18.2-121of the Code of Virginia be amended as follows:
1. This section shall not apply to a person who has an active lease, or a deed a property, providing there has not been an eviction by due process, and the property is not condemned by a qualified county official. Tenants and homeowners shall be immune to the charge of trespassing or unlawful entry.
2. If a tenant with a valid lease is charged with unlawful entry by the landlord or owner of the property, this shall constitute Landlord Retaliation, in violation of Virginia Law § 55-248.50 (Retaliatory conduct prohibited).
3. A representative of the Commonwealth Attorney office, who knowingly pursues such an invalid charge, shall be found to have committed prosecutorial misconduct, and the tenant shall be entitled to recover all reasonable attorney fees and expenses.
4. A tenant or homeowner who is suspected of trespassing or unlawful entry shall have reasonable opportunity, such as 10 minutes, to show police officers an active lease or deed to the property. Upon verification of its authenticity, this shall nullify probable cause for arrest, and avoid the time consuming and humiliating processing procedure. A tenant or homeowner wrongfully charged shall be entitled to reimbursement for time and expenses, by the Landlord who made the false charge.
This will nip the problem in the bud. The Magistrate may be unsure of the intent of this section, and will clarify the focus on whether or not the person is a tenant. An order to stay away from the property is a standard procedure in a trespassing charge. Leaving it up to the Court at a later hearing, effectively removes the tenant from his property in the mean time, making a tenant suddenly homeless..
If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.