Keable-entering and the Law, as Written

justin-katz-avatar-smiling

There’s some disagreement about legality in the comments section to my recent post about Representative Cale Keable (D, Burrillville, Glocester) and his attempt to forcibly enter a property that he owns against the tenant’s consent.  Personally, I greatly sympathize with landlords who have difficult tenants (although the behavior of both Mr. and Mrs. Keable, as displayed on the video, was abysmal, regardless).

But what does the law say?

The law for breaking and entering does not require any malicious intent (i.e., breaking into a property for any reason is illegal), and attempting to break and enter is handled as if the perpetrator had succeeded.  Furthermore, the law imposes a minimum sentence of two years, so if convicted of such a crime, Representative Keable would have to be sentenced to two years in prison.

The ambiguity is that the breaking and entering statute gives the “owner or tenant” the ability to consent.  What happens when a tenant refuses consent to a landlord is described elsewhere in law.

In the statute governing landlord access to his or her rentals, section (c) does give the landlord a right to enter a property if he or she gives at least two days’ notice.  But that has to be read within the context of the rest of the chapter.  Section (a) says the “tenant shall not unreasonably withhold consent to the landlord,” which indicates that the tenant does have a right to withhold consent if it’s “reasonable” to do so.  The only exceptions provided in law come in section (b), which states that “a landlord may enter the dwelling unit without consent of the tenant in case of emergency, or, during any absence of the tenant in excess of seven days, if reasonably necessary for the protection of the property.”

In this case, the tenant had obviously not abandoned the property, and whatever legislators may think of their role in Rhode Island civic life, they are not authorized to adjudicate the law in their private lives.  Prior to a landlord’s forcing entry, an appropriate legal authority (i.e., a court) should determine that the reason for withholding consent is “unreasonable.”  Maybe it is or isn’t reasonable for a parent to withhold consent because she’s working and her minor son is home alone (or for some other reason), but it isn’t for the landlord to decide.

The difficulty, here, is that the law itself is unreasonable.  Because legislators were so aggressive as to impose a mandatory minimum sentence for breaking and entering, the only way to moderate the punishment is through non-enforcement.

The statement from local police chief Colonel Stephen Lynch highlights this point:  “Our assessment is it did not rise to the level of criminality.”   That phrase “rise to the level” appears, from time to time, when Rhode Islanders challenge the behavior of government officials and the authorities don’t think the rules they broke are reasonable.

It’s not a statement that the representative did not attempt to forcibly enter the apartment.  It’s not a statement that landlords are allowed to do what he did.  It’s an assertion that the police have some vague standard by which they permit themselves to use their own judgment.

As it happens, I generally support some level of this discretion.  It would be to the detriment of society if the duty of law enforcement (especially local police) were less to “protect and serve” and more to enforce the government’s edicts.  (Indeed, this shift in emphasis is arguably the underlying problem behind some of America’s thorniest racial conflicts.)

That said, minimum sentences raise the threshold of this judgment by police and prosecutors.  If, further down the line of law enforcement, a judge were able and likely to consider individual circumstances and impose a more-reasonable penalty, then the threshold for the police simply to follow the law, rather than their judgment, would be lower.  In questionable cases — or in cases where failing to prosecute might further the impression that Rhode Island is an aristocracy with a banana republic legal system — they would be more apt to let the process play out.

The state is going in the wrong direction on this.  Indeed, Keable’s fellow legislators have submitted a bill to increase the minimum sentence for breaking and entering when somebody is home.  If this legislation passes, then somebody doing what Keable did will face a minimum of four years in prison, unless the judgment of the local police intervenes.  (That bill has been referred to House Judiciary, which Keable chairs.  It will be interesting to see which way he votes, if it comes back from the further study limbo.)

Looking at the law as it stands, though, one has to wonder:  If the legislators don’t believe that judges should have latitude to consider circumstances when setting a sentence, do they actually believe that the police — and attorney general, who’ll be reviewing Keable’s case — should have such latitude?  If so, does it only apply when one of their own is staring into the black hole of a full legislative term in jail?



  • Warrington Faust

    I cannot get too excited. A landlord has the right to enter his property for reasonable purposes. Here, the tenants were leaving and he had prospective tenants. I did sound as though he had tried to make an appointment with the tenant.Tenants can behave erratically. I wonder why he had the camera rolling as soon as there was a knock on the door.

    • Max

      You know there’s an ongoing problem when the kid already has the camera rolling.

  • mangeek

    Landlording is a touchy business to be in. It’s a special kind of relationship. The law is full of things you _cannot_ do, but it offers very few common-sense remedies to frequent issues.

    I’m glad we rent to friends, I can’t imagine being in a situation where the tenant doesn’t respond to my (legal) requests to access the apartment, putting me in a difficult position where I need a court-order to enter the premises. Once you’re that deep int he rabbit-hole, it means you’ll likely end up needing a full eviction (read: lawyers, at least three months unpaid rent, money, and time), damage in the apartment to fix, and you can’t realistically show it to prospective tenants until the previous ones are gone and cleaned-up after. An ugly drawn-out eviction could cost a landlord half a year’s rent or more, in a business where margins are pretty thin to begin with.

    • Mike678

      Well stated. Perhaps the law favors tenants a bit too much? After all, who takes most of the risk?

      Why does it take 3 months to get rid of a bad tenant? And how many landlords give irresponsible tenants a positive letter of recommendation just to get rid of them?

      • Warrington Faust

        I once knew an MIT professor who had an unusal way of dealing with the tenacy laws in Mass. He would hire people to break the door down, but steal nothing. On hearing from the tenants, he woud immediately replace the door. The following week it would be broken down again. Eventually, they would decide it was a terrible place to live. The man I bought my first building from recalled fondly how he would shut off water, or heat, when rent was in arrears. I have found that if you restrict yourself to middle class neighborhoods, they are embarrassed about being unable to meet their obligations, not defiant. Serious problems are rare. Most result from “two income” households. The chances of someone losing a job, becoming ill, or other financial distress, are doubled. Since unmarried couples have become the norm, I have noticed a decline in tenant relations. Slight, but perceptible. Also the ease in obtaining a mortgage, no one is concerned about a letter noting their timely payment of rent. “If you can fog a mirror, I can get you a mortgage”.

    • Max

      We avoid renting to friends and relatives Mangeek. It’s is a great way to avoid ruining a relationship

  • Warrington Faust

    Justin’s questions about judgment cause me to wonder if this does not explain the appeal of “zero tolerance” policies. Is the appeal in the natire of “don’t ask me to exercise judgment, I don’t want responsibility”? There is safety in “I just enforce the rules, I don’t make them”.

  • George from Warwick

    Anyone considering whether or not to become a landlord should read Li’l Rhody’s Landlord-Tenant Handbook. The Law is so heavily weighted towards the tenant that you would have to be nuts or a masochist or both to decide to be a landlord

    http://www.brown.edu/Administration/Auxiliary_Housing/documents/LTHandbook.pdf

    If the handbook doesn’t convince you, try watching the 1990 flick “Pacific Heights”

    http://en.wikipedia.org/wiki/Pacific_Heights_%28film%29

    • Warrington Faust

      George, there are a few rules that don’t appear in handbooks. Avoid low income property regardless of whether the numbers appear dazzling. Do not accept Section 8, or any other subsidy, tenants who are divorced from payment are rarely what you want. Anyone who wants to paint will not stay long. Buy your paint “scrubable” and custom blended, you can probably only paint one wall. Shampoo carpets at every vacancy. Accept empties and don’t rent in the winter, reasonable people move at reasonable times. Only advertise on Craig’s List, the grammar in the responses will tell you whether you got that email, or not. Also avoid “is the living room large enough for two cribs”. It is difficult to “discriminate” against people you never met. I sent out an eviction notice for non-payment today, it must be 20 years since the last time I did that. I rented that one in the winter.

  • Guest

    I would have preferred that Keable be a Republican, Justin’s sermon on “landlord’s rights” would have been more interesting.

    • Justin Katz

      Nothing is more pathetic than an assumptions of hypocrisy from an anonymous commenter.

      • Guest

        Sometimes the truth hurts, doesn’t it? What does anonymity have to do with pointing our your hypocrisy?

        • Justin Katz

          Actually, no, it doesn’t hurt, because it’s not true.
          Anonymity has to do with your cowardice. It’s easy to sit behind your computer attacking people when nobody who knows you has to find out what sort of person you really are.
          I feel badly for you. Life is so much richer when it’s lived with integrity.

Quantcast