VOL. 132 | NO. 238 | Friday, December 1, 2017
Tennessee Supreme Court Rules in Memphis Squatter Case
By Bill Dries
The Tennessee Supreme Court ruled Wednesday, Nov. 30, that the state’s theft statute applies to real property in a Memphis case involving a squatter who occupied a foreclosed East Memphis home in 2013 valued at more than $3 million.
The ruling on a general categorization of real property in the Tennessee theft statute in place since 1989 is a precedent-setting decision for the state’s highest court.
The court upheld a Shelby County Criminal Court jury’s 2015 conviction of Tabitha Gentry, who also goes by the name Abka Re Bay, on a felony charge of theft of property valued at more than $250,000. But it sent the case back to Criminal Court for resentencing, saying Judge James M. Lammey should have made the 20-year sentence consecutive with her sentence in another conviction.
Gentry’s attorney, Claiborne Ferguson, argued on appeal that Tennessee law does not recognize theft of real property as a crime but rather a civil matter.
In the Supreme Court opinion, written by Justice Cornelia Clark and joined by the other four justices, the court made a distinction between the theft of real property “by occupation, seizure and the filing of a deed to the property” and a case involving a tenant who withholds or fails to pay rent.
It’s a distinction the Tennessee Legislature did not make in the theft statute it passed 28 years ago, but prosecutors could make the distinction in deciding what charges to pursue.
Gentry filed papers she termed a “quitclaim deed” with the county register’s office in 2013 in which she claimed the 3.5-acre gated property that included a 10,000-square-foot house with two fireplaces, a swimming pool and a four-car garage. She had the locks changed on the house, chained and padlocked the front gate, and posted signs, including one claiming she had seized the property for the “Moorish National Trust.”
A real estate agent contracted by Renasant Bank to show and sell the home noticed the signs and locks and called police, leading to a legal order for Gentry and her children to get out of the house.
The Shelby County Sheriff’s Office arrested Gentry in March 2013 as she left the property in her car following a standoff that lasted several days.
The court’s ruling and opinion noted that while the Tennessee Legislature adopted most of a model penal code in its 1989 “major structural change” in Tennessee theft law to include real property, it did not adopt the part of the model code that applies the statute to real property that is unlawfully transferred. The Tennessee law says such theft “is not limited to” the unlawful transfer.
“To the extent that the defendant occupied the house without the bank’s effective consent, it does not matter, as defendant states, that there were civil remedies available to the bank to evict defendant, or that the Uniform Residential Landlord Tenant Act has provisions that govern the conduct at issue in this case.”
Tennessee Supreme Court opinion
“(Gentry) argues that the theft statute should not apply to her because this was essentially a civil matter and that “a squatter is not subject to prosecution under [Tennessee’s consolidated] theft statute,” Clark wrote. “To the extent that the defendant occupied the house without the bank’s effective consent, it does not matter, as defendant states, that there were civil remedies available to the bank to evict defendant, or that the Uniform Residential Landlord Tenant Act has provisions that govern the conduct at issue in this case.”
Clark also said the Legislature did not mistakenly leave the theft statute general in that regard.
“Courts may neither alter or amend statutes nor substitute our own policy judgments for those of the General Assembly,” she wrote. “Perhaps the General Assembly should have excluded real property from the theft statute, but it has not done so. Just as we may not overlook or ignore any of the words in a statute, we must be circumspect about adding words to a statute that the General Assembly did not place there. Here, the statute is broad enough to encompass theft of real property, and we are not at liberty to impose a restriction on that language.”
That doesn’t mean prosecutors couldn’t seek lesser charges at their discretion, like trespassing, in a case involving missing rent payments or withheld rent. And the court ruled that in most “squatter” cases, the facts probably wouldn’t support a theft charge when a squatter simply occupies a building.
“However, we reiterate that this is not a typical case. And (Gentry) was not a mere squatter,” Clark wrote. “The purported deed that she filed with the Register of Deeds Office, along with the other facts demonstrating her intent to exclude the bank from accessing the property and her intent to deprive the bank of its entire interest in the house, distinguish this case.”