Page 74 - CARS Standard Program

Breaking or Injuring Fences
Anyone who willfully and maliciously breaks down, damages, cuts or in any way creates or causes to be created an opening, gap interruption or break in any fence can be held liable for the violation of breaking or injuring a fence. Some courts’ interpretations include even the lifting of a latch or hasp on the gate, while many courts reject prosecution where the Recovery Agent opens a gate that is not locked since the debtor has, by the terms of the Security Agreement, authorized the agent to “enter upon any premises.” Again, it is important to look at case law in your area or consult an attorney. Although it may be determined there is no criminal violation, the debtor may still seek civil damages, especially if there were animals inside the fenced area that escaped while the gate was left open.
Burglary
Under common law, Burglary is defined as the breaking and entering of the dwelling ofanother,inthenight-time,withtheintenttocommitafelonytherein. However,the more modernized statutory definitions are much less restrictive. They usually require no breaking and encompass entry at all times and into all kinds of structures.
A person can be charged with Burglary if he enters a building or occupied structure, or separate secured or occupied portion, with purpose to commit a crime therein. Although a Recovery Agent opening a garage door to repossess collateral may not be charged with Burglary because he had no intent to commit a crime, there is probability he could be charged with a Wrongful Repossession by Trespass, Breach of the Peace and/or criminal “Breaking.”
Although actual Breaking requires application of some force, the slightest force, such as lifting a latch or pushing open a door kept closed by its own weight, could be sufficient action to be determined as Breaking.
Even though we have added your state’s predominate repossession case law (to the back of Section 12), such case law may not address your particular circumstance we recommend that you consult local authorities (state attorney) regarding “Breaking.”
Professionals in any industry are recognized as such not only because they have successfully completed a course of study designed for their industry but also take advantage of other available information in order to enhance and protect their business and their client. Research is a necessary extension of professionalism.
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