Could an apartment owner bar a tenant’s guest from common areas and seek a trespass charge after notice?

Plain-English summary

A Greenwood municipal judge asked whether an apartment owner could warn a tenant’s guest away from private roads and common areas, then pursue trespass charges if the guest returned. The Assistant Deputy AG said the tenant’s invitation did not automatically prevent application of the criminal trespass statute. He also concluded the statute could apply to public housing authority property.

The letter emphasized facts and legal conditions. A lease might reserve to the landlord power to exclude a guest from common areas. An invitation did not allow a guest to go beyond its purpose, create a nuisance, or violate the law. For a charge under Section 16-11-620, the owner still had to meet the statute’s notice requirements, and the guest’s “legal cause or good excuse” remained a factual question. The author said no South Carolina case squarely resolved the precise private-apartment scenario.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a tenant’s invitation always protect a guest from trespass charges? A: No. The author said the invitation did not necessarily overcome a landlord’s warning, especially where lease terms limited access or the guest went beyond the invitation’s purpose.

Q: Was a warning alone enough for a conviction?
A: The opinion required compliance with the statute’s notice provisions and treated the guest’s legal cause or good excuse as a factual question.

Q: Did the opinion include public housing property? A: Yes. The author relied on a statute deeming housing authority commissioners owners and possessors for certain property offenses and concluded trespass law could apply there.

Background and statutory framework

Section 16-11-620 supplied the general criminal trespass rule. § 16-11-525 addressed housing authority property. The letter compared State v. Hanapole and In the Interest of Joseph B. to explain why a public housing authority could invoke the trespass statutes despite the public-property issue.

Citations and references

Statutes discussed: Section 16-11-620; § 16-11-525. Cases discussed: State v. Hanapole; In the Interest of Joseph B.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-23-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97april23miller.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

April 23, 1997

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The Honorable B. Lee Miller
Judge, Municipal Court
City of Greenwood
P. 0. Box 40
Greenwood, South Carolina 29648
Re: Informal Opinion
Dear Judge Miller:
You have raised a question regarding trespassing on private property after a warning is issued by the owner of said property. Specifically, you state that
[a] private apartment complex is owned by ABC, which encompasses private roads and common areas that are under the direct maintenance and control of ABC. These areas are also enjoyed by tenants who lease apartments in this complex. (Q-1) Does ABC have the authority to place an invitee of a tenant leasing an apartment in the complex on Trespass Notice. (Q-2) Can criminal charges be brought forward on the invitee for Trespassing After Notice if he/she fails to comply with the notice given by ABC. (Q-3) Would this scenario also apply to a Public Housing complex owned by a Government Agency. Law I Analysis S.C. Code Ann. Section 16-11-620 is the general trespass statute and provides in pertinent part that

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POST OFFICE Box 11549

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COLlcMBIA. S.C. 29211-1549

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TELEPHONE:

803-734-3970

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F.~CSIMILE: 803-253-6281

The Honorable B. Lee Miller
Page 2
April 23, 1997

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[a]ny person who, without legal cause or good excuse,
enters into the dwelling house, place of business or on the
premises of another person after having been warned within
six months preceding not to do so or any person who, having
entered into the dwelling house, place of business or on the
premises of another person without having been warned within
six months not to do so, fails and refuses, without good cause
or good excuse, to leave immediately upon being ordered or
requested to do so by the person in possession of his agent or
representative shall, on conviction, be fined not more than two
hundred dollars or be imprisoned for not more than thirty
days.
... The provisions of this section shall be construed as
being in addition to, and not as superseding, any other statutes
of the State relating to trespass or entry on lands of another.

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There are other South Carolina trespass statutes extant as well. Section 16-11-610
provides that a person who trespasses upon the lands of another for the purposes
enumerated therein is guilty of a misdemeanor. However, with respect to that statute,
"[u]nless a person enters the land of another for the purposes enumerated within the
statute, there is no trespass under Section 16-11-610." Op. Atty. Gen., June 29, 1979.
This Office has previously recognized that "it would have to be established that a person
entered upon the lands to do one or more of the following: hunting, fishing, trapping,
netting, gathering fruit, wild flowers; cultivate flowers, shrubbery, straw, turf, vegetables
or herbs; or cutting timber of such land. This is the limit of the scope of the statute ....
Consequently, Section 16-11-610, may not be utilized to cover any other method or
purpose of trespass." Id.
In addition, Section 16-11-640 states:
[i]t is unlawful for anyone not an occupant, owner or
invitee to enter any private property enclosed by walls or
fences with closed gates between the hours of six p.m. and six
a.m. The provision does not apply to justifiable emergencies,
or to premises which are not posted with clearly visible signs
prohibiting trespass upon the enclosed premises. Punishment
for violation of this section is a fine of not less than twentyfive dollars nor more than two hundred dollars or
imprisonment for not more than thirty days.

The Honorable B. Lee Miller
Page 3
April 23, 1997
Various other statutory provisions which pertain to trespass upon public and private
property ... also exist as well. Such statutes are classified according to subject matter.
(i.e. trespass to park property; trespass of state correctional property; trespass to schools).
See, Op. Atty. Gen., June 29, 1979.

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Several decisions from other jurisdictions have held in particular circumstances that
the knowing entry without authority upon apartment complex property after receipt of a
prior warning constituted criminal trespass. For example, in W.L.N. v. State of Georgia,
170 Ga.App. 689, 318 S.E.2d 80 (1984), the defendant entered upon the property of the
Peachtree Place North Apartments after receiving notice to depart from such property by
properly authorized representatives of the owner. The Court in that case concluded that
"appellant's entry upon the premises after prior warning by duly authorized personnel, is
sufficient to constitute an act of criminal trespass." Noting that "'(c]riminal trespass is ...
a location crime and its purpose is to keep the defendant off the property of others,'" the
Court rejected the defendant's argument that "as the invitee of a tenant of the complex the
landlord's representatives had no authority to forbid his entry upon or to order his
departure from the premises." The Court noted that
(i]n support of this argument, appellant relies upon Anthony
v. Chicopee Mfg. Corp., 168 Ga. 400, 147 S.E. 887 (1929),
and Mitchell v. State, 12 Ga.App. 557 (2), 77 S.E. 889
(1913). These cases are cited for the proposition that the
landlord is without authority to restrict either the tenant or his
invitee in his way of ingress or egress to the residence of the
tenant so long as such travel is for lawful business and the
rights of the landlord are not infringed upon. The cited cases
are, however, not applicable to the factual posture of the
present case. Although appellant presented testimony to show
that on May 18, 1983 his entry upon the complex premises
was for the purpose of purchasing candy from a tenant for
resale at school, the State produced evidence to show that, at
the very least, appellant exceeded the scope of permissible
entry by deviating from the way of ingress and egress to enter
upon the landscaped areas to play ball. See Horsley v. State,
16 Ga.App. 136 (2), 84 S.E. 600 (1915). Further, when told
to depart, appellant left the landscaped area riding to a parking
lot in another area of the complex and circling there, refusing
to leave. Moreover, the state also showed that on numerous
occasions after appellant's family had moved from the
complex and after appellant had been warned not to enter,

The Honorable B. Lee Miller
Page 4
April 23, 1997
appellant was observed by complex officials and personnel
riding, sometimes aimlessly, through the complex premises
unaccompanied by residents of the complex. There is, thus,
no merit to appellant's assertion of error on this ground.
318 S.E.2d at 81.

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Similarly, in Williams v. Nagel, 162 Ill.2d 542, 643 N.E.2d 816 (1994), the
Supreme Court of Illinois concluded that
(a]s a condition to moving into the apartment complex,
tenants agreed to abide by the terms set forth in their lease as
well as the rules and regulations promulgated by the
management. One of the terms to which tenant agreed was
that Parkside Apartments, as lessor, reserved the right to bar
persons from its property. Any tenant's attempt to invite an
individual onto the property who had already been barred by
management would result in breach of the lease. Here, the
plaintiffs had been barred from the premises by management.
As a result, any attempt by tenants to invite the plaintiffs onto
the premises would invalid. Therefore, ... a valid invitation
was never extended to the plaintiffs ... .
643 N.E.2d at 821.

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A recent opinion of the Virginia Attorney General is also instructive. The question
in Op. Va. Atty. Gen., June 28, 1996 was whether "a person who goes upon the grounds
of a housing complex after having received notice from the manager of the complex that
he is forbidden to do so may be charged with criminal trespass ... if he claims that a
tenant of one of the housing units invited him onto the premises." Despite the Virginia
decisions, Reed v. Commonwealth, 6 Va.App. 65, 71, 366 S.E.2d 274, 278 (1988) and
Jones v. Commonwealth, 18 Va.App. 229, 443 S.E.2d 189 (1994), which had held that
a good faith belief of a right to be on the premises negates the criminal intent necessary
under the criminal trespass statute, the Virginia Attorney General wrote:
[i]n my view, neither Reed nor Jones stands for the
proposition that criminal intent can never be proven when a
person goes upon the premises of a multiunit facility after
having been notified that he is forbidden to do so, simply
because the person has claimed or may claim that he is an

The Honorable B. Lee Miller
Page 5
April 23, 1997

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invitee or a guest of one of the tenants of the facility.
Whether the trespasser is an invitee, and whether, despite the
receipt of notice forbidding his entry onto the property, he
nevertheless had the "good faith belief' that he had the right
to be on the premises are factual issues to be determined from
the evidence presented at trial. Accordingly, it is my opinion
that a person who goes upon the grounds of a multiunit
housing facility after having been notified that he is forbidden
to do so may be charged with criminal trespass ... .
Our own courts have recognized with respect to § 16-11-620 that "[a]lthough the
entry by a person on the premises of another may initially be lawful, the person becomes
a trespasser when the person fails to depart after being asked by the owner to leave."
Wright v. U.P.S., 315 S.C. 521, 445 S.E.2d 657 (1994) (emphasis added). In Shramek
v. Walker, 152 S.C. 88, 99-100, 149 S.E. 331 (1929), our Supreme Court elaborated upon
this principle by quoting other well-recognized legal treatises as follows:
"It is a well-settled principle that the occupant of any
house, store or other building, has the legal right to control it,
and to admit whom he pleases to enter and remain there, and
that he also has the right to expel from the room or building
any one who abuses the privilege which has been thus given
him. Therefore, while the entry by one person on the
premises of another may be lawful, by reason of express or
implied invitation to enter, his failure to depart, on the request
of the owner, will make him a trespasser and justify the owner
in using reasonable force to eject him. The most common
cases involving the right of an owner to eject one from his
premises who entered lawfully, are those where a person
enters a hotel or business place or the conveyance of a
common carrier and while therein forfeits his right to remain
by his misconduct or failure to comply with the reasonable
rules and regulations. On the forfeiture of his right he
becomes a common trespasser and may be forcibly ejected on
failure to depart after a request to do so . .. . "
An exceedingly clear statement of the rule is found in
Watrous v. Steele, 4 Vt. 629, 24 Am.Dec. 648: "It is a wellsettled principle that the occupant of any house, store or other
building, has a legal right to control it, and to admit whom he

The Honorable B. Lee Miller
Page 6
April 23, 1997
pleases to enter and remain there, and that he has also a right
to expel any one from the room or building who abuses the
privilege which has thus been given him; and if the occupant
finds it necessary, in the exercise of his lawful rights, to lay
hands on him to expel him he can legally justify the assault.

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And in State v. Green, 235 S.C. 266, 268 (1892), our Supreme Court stated that "when
the owner or tenant in possession of land forbids entry thereon, any person with notice
who afterwards enters such premises is liable to punishment."
In an opinion of this Office dated October 8, 1986, we concluded that § 16-11-620
"is applicable to the parking area of a shopping mall. Therefore, such statute may be used
in the situation referenced by you [to prevent individuals from loitering or congregating
in the mall] assuming all procedural requirements of the statute are met."
Admittedly, there is authority which recognizes the tenant's right to invite persons
onto the premises. It is stated at 49 Am.Jur.2d, Landlord and Tenant, § 504 that
[i]n the absence of an restriction in the agreement between the
landlord and tenant, the tenant, when in possession of the
demised premises, has the right to invite or permit such
persons as the tenant's business interests or pleasure may
suggest to come upon the premises, for any lawful purpose,
and the landlord has no right to prohibit such persons from
coming on the demised premises. This rule presupposes,
however, that the invitee enters at a reasonable hour, conducts
himself in an orderly manner, and enters on some business in
which the tenant has an interest. One who thus comes upon
the premises upon the invitation of the tenant, although
expressly forbidden to do so by the landlord, is not guilty of
a criminal trespass. Moreover, the tenant may invite or permit
his servants to come upon the premises.
On the other hand, the tenant's right to invite or permit
persons on the premises may be affected by the fact that the
comm1ss10n of a nuisance upon the demised premises is
involved.
See also, L.D.L. v. State, 569 So.2d 1310 (Fla. 1990).

The Honorable B. Lee Miller
Page 7
April 23, 1997
In City of Kent v. Herman, 1996 W.L. 210780 (Ohio 1996), the Court in holding
that a person invited onto the premises of an apartment complex by a tenant has a right
to be there, also stressed the following:

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[w]e also recognize that lease agreements in such
complexes may include provisions that reasonably restrict
guest privileges to such common facilities as pools, tennis
courts, and other recreational facilities, and that notification to
an individual of his or her unpermitted access to these areas
may form the basis for criminal culpability. However, unless
these constraints are included in the leases, guest utilization of
these common area facilities, in and of itself, cannot provide
the underpinnings for the imposition of criminal liability upon
an invited guest of one of the residents into such an area.
Another more recent Georgia decision, Arbee v. Collins, 219 Ga.App. 63, 463
S.E.2d 922 (1995) provides an excellent summary of the law in this area and reconciles
the various conflicting cases. There, the Court stated:
[a]n accused violates the criminal trespass provisions of
OCGA § 16-7-2l(b)(2) by entering or remaining upon the
premises of another with knowledge that he has been given
notice that his presence is forbidden. However, a recognized
defense to such a charge is that the accused entered or
remained upon the property under a right granted by a tenant
in possession of the property. "In the absence of a special
contract, the landlord has no right to forbid a person to go
upon the premises in the possession of a tenant, by the latter's
permission and for a lawful purpose." Mitchell v. State, 12
Ga.App. 557, 559-60, 77 S.E. 889 (1913); Horsely v. State, 16
Ga.App. 136, 141-143, 84 S.E. 600 (1915). The tenant's
invitation to a third party carries with it the same rights
enjoyed by the tenant to ingress and egress are necessary to
the purpose of the invitation. Anthony v. Chicopee Mfg.
Com., etc., 168 Ga. 400, 404, 147 S.E. 887 (1929); W.L.N.
v. State of Ga., 170 Ga.App. 689, 691, 318 S.E.2d 80 (1984).
It follows that the invitation also carries with it the same
rights enjoyed by the tenant to common areas in a multi
dwelling apartment complex to the extent the use of such
common areas is connected to the purpose of the invitation.

The Honorable B. Lee Miller
Page 8
April 23, 1997
See Restatement of the Law, Torts 2d, § 189 .... A landlord
who arrests and prosecutes a person for trespass without
inquiring as to whether the person had a right to be on the
premises pursuant to invitation by a tenant does so at his own
risk. Ellis v. Knowles, 90 Ga.App. 40, 42, 81 S.E.2d 884
(1954) ....

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Here, the facts relating to the existence of probable
cause on the criminal trespass charge are undisputed, so the
question is one of law. Arbee knew prior to the day of his
entry upon the Marsh Cove property that he had been notified
not to enter the premises. He produced evidence that he was
invited by Lineback to visit Lineback at his father's apartment,
he and Lineback were leaving the property when they saw
Collins near the entrance to the apartments. After Collins
reminded Arbee that he had been notified not to enter the
premises, and Collins left without taking any action, Arbee
then proceeded away from the exit and remained on Marsh
Cove property for the purpose of going to the manager's
office "to see what was going on." The arrest occurred after
he arrived at the manager's office.

It is unclear from the record where the manager's office
was located on the Marsh Cove property and whether the road
adjacent to it or the area around it where Arbee was arrested
was a common area of the apartment complex accessible to all
tenants. Even assuming that Arbee was arrested in a common
area of the apartment complex, there was evidence
demonstrating the existence of probable cause. We agree with
the trial court's conclusion that when Arbee proceeded to the
manager's office "to see what was going on" this was
evidence he deviated from the purpose for which he was
invited on the property and entered upon a portion of the
premises unrelated to the invitation. A tenant's guest may not
proceed at will to a part of the premises wholly disconnected
to the purpose of the invitation and use the invitation as a
defense to a charge of criminal trespass. Evidence that
Lineback merely accompanied Arbee to the manager's office
is insufficient to show that Arbee took this action pursuant to
the invitation from Lineback.

The Honorable B. Lee Miller
Page 9
April 23, 1997
463 S.E.2d at 924-925.

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I have not found a South Carolina case which squarely addresses your question.
And of course, it is primarily a factual question as to whether the requirements of § 1611-620 have been complied with, and, likewise, it is a factual issue whether, in a
particular circumstance, a trespasser is "without legal cause or good excuse." However,
it is my opinion, based upon the foregoing authorities, that the criminal trespass statute
would be applicable to your situation, depending upon the particular facts involved. For
example, if the lease specifies the landlord's right to forbid an invitee not to return to the
property, particularly the commons areas, the law generally supports his right not to do
so. Secondly, the invitee may not deviate from the specified purpose of his invitation and
thus may not loiter or congregate on the property particularly in common areas. Third,
the invitee cannot create a nuisance or hazard on the property nor may not violate the law
based upon the invitation of the tenant. In other words, while the law would generally
protect an invitee of a tenant, the landlord may alter such protection through the lease.
Any such invitation does not extend to the creation of a nuisance, violation of law, or
disturbance. Moreover, the tenant's invitation cannot extend to access by the invitee
beyond the designated purpose of the tenant's invitation. Of course, the provisions of the
trespass statute would need to be followed by the landlord -- including the notice
requirement -- for the statute to be applicable; however, in my judgment, a criminal
trespass is not negated merely because the tenant had invited a person onto the property
where the landlord had warned the person not to return to the premises.

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With respect to your question regarding whether the statute would apply to a public
housing unit as well as a private apartment complex, it is my opinion that it would. In
Op. Atty. Gen., Op. No. 88-13 (February 5, 1988), this Office described the case law in
South Carolina regarding trespass on public property as follows:
... in State v. Hanapole, 255 S.C. 258, 178 S.E.2d 247 (1970)
and In the Interest of Joseph B., 278 S.C. 502, 299 S.E.2d 331
(1983) which dealt with the construction of this State's
trespass statute, Section 16-11-620 of the Code. Such statute
prohibits trespass 'into the dwelling house, place of business
or on the premises of another person.' In Hanapole, the Court
held that Section 16-11-620 applies only to a trespass on
private property. As a result, such provision was inapplicable
to conduct at the Columbia Metropolitan Airport, which, as
described by the Court, was owned by the Richland-Lexington
Airport District, a political subdivision of this State, and
which was, therefore, public property.

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The Honorable B. Lee Miller
Page 10
April 23, 1997
In the case of In the Interest of Joseph B., the Court
ruled that Section 16-11-620 does, however, prohibit
trespassing on public school property. While acknowledging
its ruling in Hanapole, the Court referenced Section 16-11-530
of the Code which states:

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(t)or the purpose of determining .. .
whether or not there has been a trespass upon .. .
(school) ... property as this offense is defined in
Section 16-11-600 and for all prosecutions under
... other statutes of a like nature, the trustees of
the respective school districts in this State in
their official capacity shall be deemed to be the
owners and possessors of all school property.
Noting that Section 16-11-530 was applicable to
prosecutions for trespass under Section 16-11-620, the Court
determined that for purposes of a trespass prosecution under
the latter provision, public school property is 'owned and
possessed' by the particular school district trustees pursuant to
Section 16-11-530. As described by the Court, "... a trespass
upon school lands is a trespass 'on the premises of another' as
provided in Section 16-11-620."
Similar to the situation in Joseph B., § 16-11-525 deems the commissioners the
owners of Housing Authority property for certain purposes. Such Section provides as
follows:
[fjor the sole purpose of determining whether or not
any public housing authority property has been maliciously
injured as the offense of malicious mischief is defined in
Section 16-11-520, and as to whether or not there has been a
trespass upon the property as this offense is defined under
Section 16-11-600, in all prosecutions under these penal
statutes and other statutes of like nature, the members of the
board of commissioners of each state, county or municipal
housing authority in this State, in their official capacity, are
deemed to be the owners and possessors of all property of
each particular housing authority under their jurisdiction.
Nothing in this section may be construed to create personal

The Honorable B. Lee Miller
Page 11
April 23, 1997

liability for a commissioner for loss, injury, or damage to the
person or property of any other person or entity who suffers
injury while on or adjacent to housing authority property as a
tenant, an invitee, or a trespasser.
Thus, in light of the similarities of the Housing Authority statute to the school district law,
the Joseph B. case would be controlling, and the criminal trespass statutes would be
applicable to a public housing authority.

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This letter is an informal opinion only. It has been written by a designated
Assistant Deputy Attorney General and represents the position of the undersigned attorney
as to the specific questions asked. It has not, however, been personally scrutinized by the
Attorney General nor officially published in the manner of a formal opinion.
With kind regards, I am

Assistant Deputy Attorney General
RDC/an

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