A tenant leased an apartment unit using a stolen identity then failed to pay rent. The landlord evicted the tenant on completion of an unlawful detainer (UD) action. The tenant was prosecuted in criminal court for grand theft based on his intent to permanently deprive the landlord of rent. The tenant claimed he did not commit grand theft since he did not intend to possess the property permanently. A California appeals court held the tenant was guilty of the crime of grand theft of rents since he permanently deprived the landlord of his ability to receive rent from that unit during the tenancy. [The People v. Bell (2011) 197 CA4th 822]

Editor’s note — A dissenting opinion for this case correctly challenges the improper holding that the tenant is guilty of theft of personal property for obtaining a leasehold interest in real estate in the form of an apartment unit. The case’s holding implies the tenant’s obtaining a leasehold interest in the apartment building constitutes stolen personal property. It does not. The taking of a leasehold interest in real estate with no intent to permanently deprive its owner of possession to the real estate does not constitute theft. For example, an individual who takes a car with no intention of keeping it forever is not guilty of theft, but rather of joyriding. The tenant in this case merely took a “joyride” in an apartment instead of a car.

Worse, every real estate agent and broker knows a leasehold interest (estate for years) is an interest in real property, not personal property. The case’s holding falsely constitutes a leasehold interest in real estate as personal property. Personal property (or chattel) constitutes private property that is moveable from one location to another (tangible) or that represents something of value (intangible). Real property is a legally defined subset of land and improvements (tangible) or its associated rights and obligations (intangible). [California Civil Code §761]

See first tuesday forms 575, 575-1