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A dwelling (also residence, abode) is an important legal concept which defines a self-contained unit of accommodation used by one or more households as a home, such as a house, apartment, mobile home, houseboat or other 'substantial' structure. A dwelling typically includes nearby outbuildings, sheds etc within the curtilage of the property, excluding any 'open fields beyond'. It has significance in relation to search and seizure, conveyancing of real property, burglary, trespass, and land use planning.
Legal definitions vary by jurisdiction.
'Dwelling' (England and Wales)
Under English law a dwelling is defined as a self-contained 'substantial' unit of accommodation, such as a building, part of a building, caravan, houseboat or other mobile home. A tent is not normally be considered to be substantial.
'Dwelling' (North Carolina)
According to N.C. Gen. Stat. § 160A-442, "Dwelling" means any building, structure, manufactured home or mobile home, or part thereof, used and occupied for human habitation or intended to be so used, and includes any outhouses and appurtenances belonging thereto or usually enjoyed therewith, except that it does not include any manufactured home or mobile home, which is used solely for a seasonal vacation purpose. According to N.C. Gen. Stat. § 53-244.030, "Dwelling" means a residential structure that contains one to four units, whether or not that structure is attached to real property. The term includes an individual condominium unit, cooperative unit, manufactured home, mobile home, or trailer if it is used as a residence. Under the Oregon law, a "dwelling" is defined as a "building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present." United States v. Adams, 2009 U.S. App. LEXIS 25866 (9th Cir. Or. Nov. 25, 2009)
'Habitual residence' (international law)
In international conventions a person can have only one habitual residence, being the place where the individual ordinarily resides and routinely returns to after visiting other places for a reasonably significant period of time. It is used to determine the law which should be applied to determine a given legal dispute. The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements.
'Inhabited dwelling' (Various US States)
In California, Criminal Penal Code 246 which refers to shooting a firearm at an inhabited dwelling. This code specifies that a "dwelling" (more commonly referred to as a house) is "inhabited" if a person lives in it; it is irrelevant whether or not anyone is present. A house, building, or structure is not considered "inhabited" or "occupied" if the occupants have moved out or vacated and do not intend to return, even if personal property is/was left behind. Therefore, it would no longer be considered a dwelling for legal purposes, which from a defense standpoint, would negate a conviction under this code. For prosectors, it is advantageous to construe these terms loosely in order to secure as many convictions as possible for violation of this code. Examples of loose interpretation exist not only in California, but also in other states such as Colorado where similar code (Colorado Code § 18-1-901(3)(g)) applies in cases even when a shooting at an detached garage that does not traditionally constitute a dwelling or house. However, courts in both of these states and others have held that it does qualify as an occupied building for purposes of criminal conviction.
The 'curtilage' (boundary) of a dwelling
In law, the curtilage of a dwelling is the land immediately surrounding it, including any closely associated buildings and structures. It delineates the boundary within which a home owner can have a reasonable expectation of privacy with particular relevance to search and seizure, conveyancing of real property, burglary, trespass, and land use planning. In urban properties, the location of the curtilage may be evident from the position of fences, wall and similar; within larger properties it may be a matter of some legal debate as to where the private area ends and any 'open fields beyond'.
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- List of human habitation forms
- Residence in English family law, pertaining to where children should live in the case of disputes
- "Can the following comprise a 'dwelling' and therefore be eligible for exemption as a main residence?". KRS Accountants.
- "Colorado Code 18-1-901(3)(g)".
- "Legal briefing - The extent of listing 3". Context 97 (Sweet & Maxwell). November 2006.