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ELEMENTS OF PROPERTY CRIMES

Trespass
In the self-help repossession process, it is sometimes necessary or expedient to enter upon
the private property of the debtor or a third party to recover the collateral. Trespass is
generally defined as an unlawful interference with one’s property or rights, or any
UNAUTHORIZED intrusion or invasion of private premises or land of another
(Antikiewicz v. Motorists Mut. Ins. Co., 91 Mich. App. 339, 283 NW. 2d 749, 753).
The present prevailing position of the courts finds liability only in the case of
INTENTIONAL intrusion, or negligence, or some “abnormally dangerous activity on
the part of the defendant.”

A “trespasser” is defined as one who intentionally, and WITHOUT CONSENT or
PRIVILEGE enters upon the property of another or, one who enters upon the property
of another WITHOUT ANY RIGHT, LAWFUL AUTHORITY, OR EXPRESS OR
IMPLIED INVITATION, PERMISSION, OR LICENSE.

In the section on Security Agreements, Additional Terms and Agreements (Contracts
- Section 5), we find that the debtor has given permission to the creditor or creditor’s
agent, in the event of default, to “enter upon any premises where said property may
be and remove the same without process of law.” Although the debtor, by signing the
security agreement, has given this express permission, we must, at all times, be aware of
the potential for a Breach of the Peace or Wrongful Repossession by violating other
federal or state laws that impact the self-help repossession process regardless of where
the collateral might be. An example of such violation would be entering a closed
garage attached to the residence or other, separate closed structure. As to entering
an open garage that is attached to the residence we recommend you consult with
your attorney or local State Attorney. Another example would be forcibly (removing
a lock, etc.) opening a closed gate to a fenced area.

Trespass After Warning
Even more applicable to the recovery process is “Trespass after Warning.” You have
entered upon the debtor’s property and before you have removed the collateral the debtor
appears and protests the repossession and calls the police. A police officer arrives and
upon request of the debtor gives you a written order prohibiting you from returning to the
debtor’s property.

Trespass after warning pertains to a Recovery Agent who has been ordered from the
property by the police and the debtor. Unless directed by law or the courts, this order
does not prohibit another Recovery Agent from the same Recovery Agency to enter the
debtor’s property for the purpose of repossession.

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