A theft or not a theft?

Curious1002

Hey all,
Can someone advise, direct me or point out to the right legal lierature to find out if removing a property from one empty apt no 1 (a tenant moved out a day before) and moving it to another apt no 2 of the same Landlord (both apts 1 and 2 just beside each other, building and all 8 apts belong to the same Landlord) is this considered a theft? The item technically never left the building and actually never would have because it would stay in the apt 2 when the tenant decides to move out, so can you be charged with a theft or a burglary?

A friend is being threatened by the Landlord for removing a picture from the wall of an opened and empty apt and bringing it to his apt. He got a call from garda who "invited" him to make a statement. Is this a theft or technically it isnt since the item is not removed from the landlord's entire property?

ohnonotgmail

I'm not sure "I only intended to borrow it while I was living there" is a winning argument in court.

1874

Seems pedantic to claim its theft if the item is available to the owner, is the tenant moving to apt2 or their stuff is just being stored there while they are in the process of leaving? or have left?
I might ring said Garda and tell them the story, might, but I would not make a statement. Any request or insistence otherwise that its required Id follow up with, Ill take legal advice and speak to my solicitot before doing so.
Has the tenant left under acromonius circumstances? or moving to apt2? seems very pedantic of them. Is there other property still present at apt1 or stored in apt2? Id consider a clause in the lease that says storage will be charged for outside of tenancy, items to be removed upon departure and tell them when they can collect. If they are not moving to apt2 and the deposit has been returned, find an agreed time and by a recorded method tell them to collect their stuff asap. Id consider saying it will go to charity or be binned at their expense (if they are already gone) but Id ge legal advice and consider adding a condition to this effect.

If the tenant is moving to apt2 are they doing so willingly? or is there some dispute due to change of circumstances? if a new tenancy Id consider getting rid of them within the first 6 months for pulling a stunt like this.

Witcher

phildub wrote: »

dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

Did they deprive the owner of the property, yes! It's a burglary. Absolutely do not go near a police station tell them if they want to talk they will have to arrest otherwise you are not entitled to rights such as silence solicitor etc

Well that's a lie, if you go to a Garda station for a voluntary caution statement you're still entitled to both of these.

It's theft!

ohnonotgmail

1874 wrote: »

Seems pedantic to claim its theft if the item is available to the owner, is the tenant moving to apt2 or their stuff is just being stored there while they are in the process of leaving? or have left?
I might ring said Garda and tell them the story, might, but I would not make a statement. Any request or insistence otherwise that its required Id follow up with, Ill take legal advice and speak to my solicitot before doing so.
Has the tenant left under acromonius circumstances? or moving to apt2? seems very pedantic of them. Is there other property still present at apt1 or stored in apt2? Id consider a clause in the lease that says storage will be charged for outside of tenancy, items to be removed upon departure and tell them when they can collect. If they are not moving to apt2 and the deposit has been returned, find an agreed time and by a recorded method tell them to collect their stuff asap. Id consider saying it will go to charity or be binned at their expense (if they are already gone) but Id ge legal advice and consider adding a condition to this effect.

If the tenant is moving to apt2 are they doing so willingly? or is there some dispute due to change of circumstances? if a new tenancy Id consider getting rid of them within the first 6 months for pulling a stunt like this.

my reading of is that the tenant of apartment 1 moved and the tenant of apartment 2 decided that the picture would look nicer in their apartment. I can't see that can be other than theft.

Witcher

1874 wrote: »

Seems pedantic to claim its theft if the item is available to the owner, is the tenant moving to apt2 or their stuff is just being stored there while they are in the process of leaving? or have left?
I might ring said Garda and tell them the story, might, but I would not make a statement. Any request or insistence otherwise that its required Id follow up with, Ill take legal advice and speak to my solicitot before doing so.
Has the tenant left under acromonius circumstances? or moving to apt2? seems very pedantic of them. Is there other property still present at apt1 or stored in apt2? Id consider a clause in the lease that says storage will be charged for outside of tenancy, items to be removed upon departure and tell them when they can collect. If they are not moving to apt2 and the deposit has been returned, find an agreed time and by a recorded method tell them to collect their stuff asap. Id consider saying it will go to charity or be binned at their expense (if they are already gone) but Id ge legal advice and consider adding a condition to this effect.

If the tenant is moving to apt2 are they doing so willingly? or is there some dispute due to change of circumstances? if a new tenancy Id consider getting rid of them within the first 6 months for pulling a stunt like this.

What OP did you read? Going on about deposits lol

As per the opening post, the previous tenant of the apartment moved out and another tenant (the OP's 'friend') went into the apartment and took a picture from it.

punisher5112

Put it back?

Answer no questions.

No comment.

How would they know one took it as in where it is?

Curious1002

Burglary? Ok, looks like my friend is fu@ked and will fry big time!
The Landlord sent his daughter to Apt 2 asking for the picture and he returned it with apologies saying that he thought that it belonged to the ex-tenant who moved out and "abandoned" it. He doesnt know if it belonged to the ex tenant or the landlord but a year or so it wasnt there so he assumed it belonged to the ex-tenant. The Landlord must have reported the "theft" to the guards and my friend is going down the drain for such a trival stuff. A perfect example of how you can destroy your life in seconds.

Curious1002

No no, it was returned, landlord got pissed anyway and now having the picture as evidence and the daughter as witness my friend has no line of defense.
But i heard that if technically the item never left the landlord's property but just moved places/areas and that the pic would stay in the apt 2 forever anyway then maybe they cant technically call it a theft. But i see your point and i better tell him to fork out some big cash and hire a solicitor.

phildub

Curious1002 wrote: »

No no, it was returned, landlord got pissed anyway and now having the picture as evidence and the daughter as witness my friend has no line of defense.
But i heard that if technically the item never left the landlord's property but just moved places/areas and that the pic would stay in the apt 2 forever anyway then maybe they cant technically call it a theft. But i see your point and i better tell him to fork out some big cash and hire a solicitor.

I hope it gets sorted, the landlord was a bit of a dick for reporting to the police when the item was returned!

Del2005

phildub wrote: »

Ok what I said might have been hyperbole but my theory stands, why would you agree to a voluntary interview and remain silent?!you are more protected once you are arrested. Ita not like the garda is going to drop the charges because the tenant says they thought it wasn't illegal. The landlord has reported a theft and if you enter a premises with the intent to commit a crime that is burgulary, it is very serious and the accused person should always have full protection of the law in these situations

But I agree with what you said about my post, thank you

What's the point of volunteering for an interview to say nothing? Wait to be arrested and then say nothing, save yourself a trip to the station and a few hours of your life. .

daheff

ohnonotgmail wrote: »

my reading of is that the tenant of apartment 1 moved and the tenant of apartment 2 decided that the picture would look nicer in their apartment. I can't see that can be other than theft.

My reading of it is the op's mate walked into another apartment which was open and took a painting back to their apartment.


This is theft. Only if the op's mate had done this with the ok of the landlord is this not theft (and trespass).

Del2005

phildub wrote: »

I hope it gets sorted, the landlord was a bit of a dick for reporting to the police when the item was returned!

If a person steals from me they will be reported for theft regardless of the item being returned or not.

Getting caught doesn't cancel the crime. Do you think car thieves should get away with it if they are caught in the car and the owner gets it back?

pummice

Landlord sounds like a pr1ck for involving the police, when the tenant genuinely believed the item was abandoned by the previous tenant and the apartment was open. Possibly the guard is a friend of the landlord and is doing him a favour. The tenant has little to worry about.

Curious1002

And if my friend calls the ex-tenant and ask if it's their pic and gets permission to have it would it do anything?
If the pic is the ex-tenant is this better or it doesnt matter now cos he entered the landlord's property and thats already a crime in itself... Does the landlord have to prove the pic is his or the simple fact that it was in his apt is enough to claim the ownership of it by the landlord? And finally, what do you think he will get - criminal record for life, jail time, 10K fine, to cover both sides legal costs or even all in one?
The pic was worth like €20 but who knows how much the landlord will say its worth.

ohnonotgmail

daheff wrote: »

My reading of it is the op's mate walked into another apartment which was open and took a painting back to their apartment.


This is theft. Only if the op's mate had done this with the ok of the landlord is this not theft (and trespass).

we are saying the same thing

Marcusm

daheff wrote: »

My reading of it is the op's mate walked into another apartment which was open and took a painting back to their apartment.


This is theft. Only if the op's mate had done this with the ok of the landlord is this not theft (and trespass).

This is an interesting one and the OP’s friend has certainly done a stupid thing. If the entire building is owned by the same landlord and the tenant move the item to another flat there might be a question as to whether he intended to deprive the landlord of it given that it was still in a property to which the owner had access. A strong criminal solicitor might be able to advise but I suspect it will need a barristerZ. That being said, the gardai might prefer, in the absence of any irrefutable evidence such as an independent witness, to prefer to deal with it via caution if that is permissible.

whisky_galore

Is this a Dutch old master or an Irish LL decor pound shop special?

ohnonotgmail

Marcusm wrote: »

This is an interesting one and the OP’s friend has certainly done a stupid thing. If the entire building is owned by the same landlord and the tenant move the item to another flat there might be a question as to whether he intended to deprive the landlord of it given that it was still in a property to which the owner had access. A strong criminal solicitor might be able to advise but I suspect it will need a barristerZ. That being said, the gardai might prefer, in the absence of any irrefutable evidence such as an independent witness, to prefer to deal with it via caution if that is permissible.

well the OPs friend handed the picture back to the landlords daughter so there can't be any doubt that they did take the picture.

phildub

phildub wrote: »

You are not comparing like with like here the person thought they were taking abandoned property it was not taken with malice,if I was the landlord in that situation I'd take my picture back and say no more.

Malice is not a requirement.

phildub

Niner leprauchan wrote: »

Malice is not a requirement.

I never said it was a requirement im saying give a man a break

Bob the Seducer

I think my explanation would be something to the effect of:

"On noticing the neighbouring apartment was unsecured, I retrieved the picture for safekeeping and to prevent it from being stolen. On request, I immediately returned said item to the landlord's agent. No attempt was made to conceal, deny possession or refuse return of the picture."

The real question is how the landlord knew your friend had the picture OP... unless there's CCTV on the corridor or somewhere else.

Del2005

Del2005 wrote: »

What's the point of volunteering for an interview to say nothing? Wait to be arrested and then say nothing, save yourself a trip to the station and a few hours of your life. .

Judges will ask Gardai if a suspect cooperated with an investigation or not. If it actually makes a difference to the sentence, I dunno really.

A voluntary cautioned statement takes 30 minutes and it's by appointment.

Or you can be arrested at 7am in your pyjamas and it takes an hour in a cell before you even get asked a question.

Also consider that in order to avail of an adult caution you must admit the offence.

Sometimes the easy option is the best option.

Yeah how did they LL know he had the pic.... Wildly over the top to get the guards involved over it I think
... I wonder is the landlord angling a way to get rid of the tenant for whatever reason

phildub

Niner leprauchan wrote: »

Judges will ask Gardai if a suspect cooperated with an investigation or not. If it actually makes a difference to the sentence, I dunno really.

A voluntary cautioned statement takes 30 minutes and it's by appointment.

Or you can be arrested at 7am in your pyjamas and it takes an hour in a cell before you even get asked a question.

Also consider that in order to avail of an adult caution you must admit the offence.

Sometimes the easy option is the best option.

Spoken like a true Garda

ted1

Curious1002 wrote: »

Burglary? Ok, looks like my friend is fu@ked and will fry big time!
The Landlord sent his daughter to Apt 2 asking for the picture and he returned it with apologies saying that he thought that it belonged to the ex-tenant who moved out and "abandoned" it. He doesnt know if it belonged to the ex tenant or the landlord but a year or so it wasnt there so he assumed it belonged to the ex-tenant. The Landlord must have reported the "theft" to the guards and my friend is going down the drain for such a trival stuff. A perfect example of how you can destroy your life in seconds.

Why was your friend trespassing in the apartment in the first place ?

phildub

phildub wrote: »

Spoken like a true Garda

Yep and it's accurate based on years of doing it.

Your experience is?????

Eire392

phildub wrote: »

Noone that is suspected of commiting a crime should be going to a Garda station voluntarily. You know as well as I do that once the voluntarily statement is taken then the individual can be arrested and then an official statement taken, implying that the voluntary statement process takes half an hour is inaccurate and misleading. If the garda want to arrest people I their pjs then that is on them but I know for a fact that arrangements can be made to be arrested at garda Station with solicitor present for questioning which to me sounds the easiest way. You can either arrest them or you can't so either get the arrest over with or why would they talk to you and potentially incriminate themselves to lead to an arrest.

Experience : years and years of watching law and order

Why do people give advice on here when they clearly don't know what they are talking about.

How is a voluntary cautioned memo not an 'official statement'

Anyone that comes in and gives a voluntary statement is extremely unlikely to be arrested later unless they have conclusively been proven to have lied and it's an arrestable offence. In this case your man coming in holding his hands up giving his side of the story would be far better off than being arrested and going no comment.

phildub

Eire392 wrote: »

Why do people give advice on here when they clearly don't know what they are talking about.

How is a voluntary cautioned memo not an 'official statement'

Anyone that comes in and gives a voluntary statement is extremely unlikely to be arrested later unless they have conclusively been proven to have lied and it's an arrestable offence. In this case your man coming in holding his hands up giving his side of the story would be far better off than being arrested and going no comment.

I could say you clearly don't know what you are talking about and we could go around in circles.

Witcher

phildub wrote: »

Noone that is suspected of commiting a crime should be going to a Garda station voluntarily. You know as well as I do that once the voluntarily statement is taken then the individual can be arrested and then an official statement taken, implying that the voluntary statement process takes half an hour is inaccurate and misleading. If the garda want to arrest people I their pjs then that is on them but I know for a fact that arrangements can be made to be arrested at garda Station with solicitor present for questioning which to me sounds the easiest way. You can either arrest them or you can't so either get the arrest over with or why would they talk to you and potentially incriminate themselves to lead to an arrest.

Experience : years and years of watching law and order

There's no 'statement' taken from you when you're arrested and detained. You're interviewed, you answer the questions that are put to you, you may opt to have a solicitor present or not.

You're then fingerprinted, photographed and a DNA sample is taken from you.

You'll find yourself put in a cell between these steps.

Or you can go to a station, again with a solicitor present (or not) and make a cautioned statement which is recorded, you won't be fingerprinted etc. And you won't be put in a cell. You'll be brought to an interview room, you'll be cautioned and you then state your version of events under said caution, the Gardai won't ask any question other than to clarify parts of your statement if necessary and you'll be done.

As Niner said, if the OP's friend is eligible for, and wants to avail of, an adult caution they will have to admit the offence either way.

One way is upto 6 hours, the other 30-60 mins. It's upto the OP's friend, the Gardai don't really care either way.

tjhook

Would it really be theft? My reading is that the landlord owns all the apartments in the building, and the OP's friend moved the picture from one to another. Isn't this like moving a jumper from the Men's to the Women's section of Tesco?

Also, was the landlord really deprived of the picture, since it was still in the landlord's property?

Witcher

tjhook wrote: »

Would it really be theft? My reading is that the landlord owns all the apartments in the building, and the OP's friend moved the picture from one to another. Isn't this like moving a jumper from the Men's to the Women's section of Tesco?

Also, was the landlord really deprived of the picture, since it was still in the landlord's property?

You haven't deprived Tesco of their item in that scenario, they can just move it back, they still have control over it.

In this case it's the landlord's property which they no longer have access to because it's in the OP's friend's apartment. They no longer have control of the item because the OP's friend has taken it without their permission.

Lenar3556

Certainly bordering on theft
Garda probably won’t proceed too far with it.
Landlord clearly wants you out.
Don’t speak to Garda without legal advice.

ohnonotgmail

tjhook wrote: »

Would it really be theft? My reading is that the landlord owns all the apartments in the building, and the OP's friend moved the picture from one to another. Isn't this like moving a jumper from the Men's to the Women's section of Tesco?

Also, was the landlord really deprived of the picture, since it was still in the landlord's property?

the landlord goes into the property. the picture is not there. it has been taken and they do not know where it is. they are therefore deprived of their property.

Eire392

phildub wrote: »

I could say you clearly don't know what you are talking about and we could go around in circles.

I've years of experience doing this. It's clear you don't

He made the wrong decision in taking it but at least it was returned intact!

No need in my view to waste any further time on this.

phildub

phildub wrote: »

I never said I had years of experience it doesn't mean that I don't know what I am talking about. You are advising from the point of view of a garda and a garda is never the right person to advise someone who is suspected of committing a crime as you can only see it from your point of view which isn't necessarily the best thing for the suspect. We will have to agree to disagree on this one

If the person followed your advise, they will be charged / summoned. If they follow ours, they will get an adult caution.

So I ask again, your in a position to give solid advise based on.....?

Oscar Madison

Oscar Madison wrote: »

He made the wrong decision in taking it but at least it was returned intact!

No need in my view to waste any further time on this.

While I suspect this would be the attitude of 99% of people, apparently the landlord falls into the 1% for whatever reason

tjhook

tjhook wrote: »

Would it really be theft? My reading is that the landlord owns all the apartments in the building, and the OP's friend moved the picture from one to another. Isn't this like moving a jumper from the Men's to the Women's section of Tesco?

Also, was the landlord really deprived of the picture, since it was still in the landlord's property?

So, if the landlord owns the whole building, it's ok for him to pop in and out of any of those flats is it?

phildub

Niner leprauchan wrote: »

Again, your experience?

I have a masters of law, I worked in probation, I worked with victim services which had heavy involvement with attending at stations and I am studying to become a solicitor now and I'm training at a criminal defense firm. So I have seen the criminal justice system work from all angles ( I also have a forensic science degree and wrote my thesis for FSI and interned at a state lab in the states but that has no relevance here). I'm listening to your point of view and I can see where you are coming from, as a garda, but I don't agree with it

phildub

Niner leprauchan wrote: »

If the person followed your advise, they will be charged / summoned. If they follow ours, they will get an adult caution.

So I ask again, your in a position to give solid advise based on.....?

Oh i see you edited your response, you have no idea what would happen either way tbh

phildub

phildub wrote: »

Oh i see you edited your response, you have no idea what would happen either way tbh

I do. It's as I said. Failure to engage will just mean a prosecution. They have a witness, they will proceed and let the judge decide.

I deleted my reply to avoid a petty tit for tat.

Marcusm

ohnonotgmail wrote: »

well the OPs friend handed the picture back to the landlords daughter so there can't be any doubt that they did take the picture.

There is no independent evidence that the OP’s friend surrendered the picture to the landlords daughter. The picture is now in the landlords possession. This is why, I suspect, if the OP’s friend dealt with this correctly the worst they could get is a caution. On the assumption that they have made no admission that they took the picture and denied handing it back there is no evidence beyond a reasonable doubt that they committed a theft. A different circumstance would exist if they had surrendered the property to the gardai or an independent third party. Ultimately, this sounds like the sort of thing which should not trouble the criminal justice system.

Witcher

Marcusm wrote: »

There is no independent evidence that the OP’s friend surrendered the picture to the landlords daughter. The picture is now in the landlords possession. This is why, I suspect, if the OP’s friend dealt with this correctly the worst they could get is a caution. On the assumption that they have made no admission that they took the picture and denied handing it back there is no evidence beyond a reasonable doubt that they committed a theft. A different circumstance would exist if they had surrendered the property to the gardai or an independent third party. Ultimately, this sounds like the sort of thing which should not trouble the criminal justice system.

In order to be eligible for a caution they have to admit the offence.

daheff

ohnonotgmail wrote: »

we are saying the same thing

We are saying the same thing


I agree with you

ohnonotgmail

Marcusm wrote: »

There is no independent evidence that the OP’s friend surrendered the picture to the landlords daughter.

you talk as if the evidence from the daughter would be immediately dismissed as she is related to the landlord. this is nonsense.

phildub

phildub wrote: »

My advice was to contact a solicitor and not to go there on your own a solicitor can arrange for an adult caution I've seen it done, a solicitor can arrange for a voluntary interview, I've seen that done too, a solicitor is also in a position to advise the person what they are likely facing. My advice was for the person in this situation not to go on their own to the garda station, not to not corporate with the garda

So, pay a solicitor to do what you can do yourself for free?

Again, if the person won't engage or admit the offence, there's no caution. Doesn't matter who the solicitor is.

Only time I have ever organised a caution with a solicitor, it was when they knew the client was guilty and had to push them to admit it for the caution as the client wouldn't engage and I was going to arrest them.

Same with being arrested on appointment. It's convenient for all involved. Doesn't really prove your point one iota though.

Infernal Racket

In its strictest terms you're friend has committed a burglary OP. If the owner of the property has indeed made a statement of complaint then there is a strong possibility he will be arrested, detained and questioned. A lot of tooing and froing going on in the comments. Best advice, tell him to contact a solicitor. Is there more to this story that we don't know? How did the landlord find out about the picture in the first place? Maybe it's already been explained and I missed it

Witcher

phildub wrote: »

My advice was to contact a solicitor and not to go there on your own a solicitor can arrange for an adult caution I've seen it done, a solicitor can arrange for a voluntary interview, I've seen that done too, a solicitor is also in a position to advise the person what they are likely facing. My advice was for the person in this situation not to go on their own to the garda station, not to not corporate with the garda

Your advice was to tell the Gardai they're not coming down unless they're arrested claiming that otherwise you have no rights which is complete crap;

phildub wrote: »

dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

Did they deprive the owner of the property, yes! It's a burglary. Absolutely do not go near a police station tell them if they want to talk they will have to arrest otherwise you are not entitled to rights such as silence solicitor etc

Then when I corrected you, the advice became;

phildub wrote: »

Noone that is suspected of commiting a crime should be going to a Garda station voluntarily. You know as well as I do that once the voluntarily statement is taken then the individual can be arrested and then an official statement taken, implying that the voluntary statement process takes half an hour is inaccurate and misleading. If the garda want to arrest people I their pjs then that is on them but I know for a fact that arrangements can be made to be arrested at garda Station with solicitor present for questioning which to me sounds the easiest way. You can either arrest them or you can't so either get the arrest over with or why would they talk to you and potentially incriminate themselves to lead to an arrest.

Experience : years and years of watching law and order

Talking about an 'official statement'...whatever that is....

Then when I explained the outline of the two processes to you the advice changed again to;

phildub wrote: »

My advice was to contact a solicitor and not to go there on your own a solicitor can arrange for an adult caution I've seen it done, a solicitor can arrange for a voluntary interview, I've seen that done too, a solicitor is also in a position to advise the person what they are likely facing. My advice was for the person in this situation not to go on their own to the garda station, not to not corporate with the garda

What is your advice in simple terms here because you don't seem to sure yourself.

Infernal Racket

phildub wrote: »

You keep changing what you've written its getting confusing. I am not trying to prove a point I know that you will never agree with what I am saying.

And I see that person was able to take sound legal advice from a solicitor, arrange a caution and avoid an arrest, good day all round!

I'm interested in the solicitor arranging the adult caution part. How does that work now?