Written by Consider a scenario where you are locked out of your home and, in desperation, decide to break open your front door. Is this act considered breaking and entering? If it is your home, most would instinctively say no. However, the legal question becomes more complicated when shared ownership or tenancy is involved. The case of R v BA [2021] NSWCCA 191 challenges our understanding of breaking and entering and raises important questions about property rights and consent within the context of shared homes.
In R v BA, the defendant, BA, was a co-tenant of a rental property along with Taylor. After a falling out, BA moved out but retained his tenancy rights. Some weeks later, BA returned to the house and, finding himself locked out, forcibly broke down the door when Taylor refused him entry. BA then proceeded to assault Taylor. While BA argued that, as a co-tenant, he could not be guilty of breaking and entering his own home, the trial judge agreed, acquitting him on the grounds that his lease provided him with a right of entry. Under Section 112 of the Crimes Act, a person who breaks and enters any dwelling house and commits a serious indictable offence inside, such as assault, may be guilty of a criminal offence. While this provision generally applies to unlawful entries into others’ homes, the court found that it can also extend to one’s own dwelling in circumstances where the entry is unlawful. In this case, although BA had a legal right to enter under his lease, the court determined that Taylor, as a co-tenant, had effectively withdrawn her consent for BA to enter, rendering his forcible entry unlawful.
This raises a critical point in property law: can one co-tenant withdraw consent for another’s entry? The court affirmed that consent between co-tenants is a vital consideration. Even though BA had a legal right to the property as a tenant, his entry became unlawful when Taylor explicitly or implicitly revoked that consent. Thus, his actions could be classified as breaking and entering under Section 112 of the Crimes Act, even though the property was jointly owned. This case serves as a reminder that legal rights to property, while rooted in ownership or tenancy, are often nuanced and subject to the dynamics of personal relationships and consent.