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Tennessee: Supreme Court Rules that Theft Statute Encompasses Theft of Real Property

Posted By USFN, Tuesday, May 15, 2018
Updated: Tuesday, May 8, 2018

May 15, 2018

by James Bergstrom
Wilson & Associates, PA – USFN Member (Arkansas, Mississippi, Tennessee)

In 1989 Tennessee enacted a consolidated theft statute based on the Model Penal Code, which eliminated the confusing and fine-line distinctions among different forms of theft. The enactment of the consolidated statute also broadened the application of the Tennessee theft statute to include theft of real property. Under express code provisions, theft is committed when a criminal actor “obtains or exercises control over [ ] property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103. Late last year, the Tennessee Supreme Court ruled on the issue of whether the theft statute applied to real property in State of Tennessee v. Tabitha Gentry (aka Abka Re Bay), No. W2015-01745-SC-R11-CD, 2017 Tenn. LEXIS 733 (Nov. 29, 2017). The court held that the theft of real property is a criminal offense in Tennessee.

On August 26, 2011, Renasant Bank foreclosed on real property located in an upscale neighborhood in Memphis. The property included a 10,000-square foot home, a four-car garage, and a swimming pool. The bank sold the real property and a closing was scheduled for late March 2013. On February 25, 2013 the defendant, Tabitha Gentry (Gentry), filed three documents with the Shelby County Register of Deeds, including a quitclaim deed that purported to transfer ownership of the real property to “Abka Re Bay,” Gentry’s alias. By March 4, 2013, without the bank’s consent or knowledge, Gentry had entered the home; changed the locks; placed a chain across the driveway entrance to the property; and positioned signs about the property notifying the public to “Keep Out,” asserting “No Trespassing,” and announcing that the property was “Private Property.”

The bank discovered the illegal entry on March 4, 2013 and notified the police. On March 5, 2013 the bank posted a written notice to vacate on the gate of the home informing the occupants that they “must have vacated this property by March 6th, 2013 at 2:30 p.m.” Gentry failed to vacate by March 6, 2013 and she was arrested as she left the property on March 7, 2013. She was charged with, and convicted of, theft of property valued at over $250,000 and aggravated burglary. Gentry appealed to the Court of Criminal Appeals, which affirmed the lower court’s convictions. She then appealed to the Tennessee Supreme Court.

The issue on appeal was “whether Tennessee’s consolidated theft statute encompasses the offense of theft of real property, and if so, whether theft has been committed based on the facts of this case.” Id., 9-11.

Supreme Court’s Review & Conclusion
Gentry first contended that the theft statute should be limited to include only theft offenses recognized before the enactment of the 1989 theft statute. The Court, however, reviewed Tennessee’s consolidated theft statute and determined that a person commits theft when he or she “obtains or exercises control over [ ] property without the owner’s effective consent.” Tennessee Code Ann. § 39-14-103. The Court zeroed in on the General Assembly’s definition of “obtain” in the theft statute, and found that the General Assembly broadly defined the term, stating that theft “includes, but is not limited to, the taking or carrying away or the sale, conveyance or transfer of title to or interest in or possession of property ....” Tenn. Code Ann. § 39-11-106(a)(24)(B). Citing State v. Amanns, 2 S.W.3d 241, 243-44 (Tenn. Crim. App. 1999), the Court determined that theft under Tennessee law “is complete when a person takes property, without the owner’s consent with the intent to deprive the owner of the property.”

Gentry then argued that the Tennessee theft statute only applies to “tangible, movable property” and not to real property. The Court again turned to the theft statute and found the term “property” to be broadly defined as “anything of value, including, but not limited to . . . real estate.” Tenn. Code Ann. § 39-11-106(a)(28). The Court concluded that the General Assembly could have adopted statutory language that did not include real property in the definition of “property,” but did not do so. Therefore, the Court held that the theft statute applied to real property and the judgment of the Court of Criminal Appeals was affirmed.

It is worth noting that the Court made efforts to distinguish a cause of action for theft of real property from the more common causes of action against a squatter or a holdover tenant. The Court opined that, in a case against a squatter or a holdover tenant, the State would find it difficult to prove one of the elements of theft, namely, the defendant’s intent to deprive the owner of her ownership interest in the property. In contrast, in Gentry the Court concluded that the defendant was not a mere squatter or holdover tenant. Rather, the evidence supported her intent to deprive Renasant Bank of its interest in the real property when she “filed papers with the Register of Deeds Office by which she sought to obtain record ownership of the property,” entered the house, posted signs along the exterior of the property indicating that it belonged to her, padlocked the entrance to the property, and changed the door locks. As a result, the Court concluded that the facts under Gentry are distinguishable from the typical causes of action against squatters and holdover tenants.

The Tennessee Supreme Court affirmed the judgments of the trial court and the Court of Criminal Appeals, and remanded the case for re-sentencing.

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