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Theft of Real Property

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CaseState of Tennessee v. Tabitha Gentry, aka Abka Re Bay

Issue:  Does a person commit theft by occupying a house and preventing entry by the owner?

Facts:  The Defendant occupied a vacant house that was in the process of being sold by a bank following foreclosure. The Defendant put chains on the entrance gate and a sign stating that she had “seized” the land. At trial, the Defendant raised a defense of “claim of right” and sought to argue that she had an honest belief she could obtain “adverse possession” of the house, but was denied. Defendant was convicted of theft of property valued over $250,000 and aggravated burglary.

Appellate Decision:  The intermediate court affirmed the convictions, finding the evidence to be sufficient. Theft requires the defendant (1) “knowingly obtains or exercises control over the property,” (2) “with intent to deprive the owner” of the property, and (3) “without the owner’s effective consent.” T.C.A. § 39-14-103. The Defendant entered the property without permission and barred entry from the rightful owner, so the elements were satisfied.

Review Granted:  December 14, 2016.

Prediction:  Ben thinks the Supreme Court will affirm under these facts. If the person had merely “squatted” on the house there arguably would not have been an intent to deprive, but the chains on the house and the “seizure” sign constitute sufficient proof. David thinks there is a valid question of whether the house—real property—can be the subject of theft. David also is concerned that this does not seem to be a burglary under the facts. More significantly, while tenuous, the defendant should have been allowed to argue adverse possession.