Commonwealth v. Nelson - 74 Mass. App. Ct. 629, 909 N.E.2d 42 (2009)

Rule:

The rule of Richardson provides a defense to a charge of criminal trespass only for those defendants who are in the common areas of an apartment building at the invitation of a tenant and within the scope of that invitation. It does not divest the landlord of "lawful control" of the common areas.

Facts:

Gregory Nelson had earlier been forbidden to enter onto Boston Housing Authority (BHA) property. Officers found Nelson in a hallway of a housing development owned by the BHA and was arrested. Although the trial court found that Nelson had been invited to the premises by a tenant, the trial court convicted Nelson of trespass on the ground that the BHA had previously ordered him to stay away.

Issue:

Does Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678 (1943), which involved a private landlord, apply equally to the BHA?

Answer:

Yes

Conclusion:

The appellate court held that residential tenants had a right to permit visitors to pass through the common areas of the building for the purpose of approaching their apartments. If a person passed through the halls of a residential apartment building at the legitimate invitation of a tenant, he could not have been convicted of criminal trespass. The BHA public housing lease indicated that it was customary to permit invited guests to pass through the common hallways in order to reach their tenant-host's apartment. A conviction for trespass could not have stood against a person found to be passing through the halls of BHA property in order to reach a tenant's apartment at the tenant's invitation. There was no evidence that Nelson had lingered or loitered in the hall.