Curtilage

The curtilage is an important legal term to define the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated 'open fields beyond'. It defines the boundary within which a home owner can have a reasonable expectation of privacy and where 'intimate home activities' take place. It is an important legal concept in some jurisdictions for the understanding of burglary, trespass, and in relation to planning controls.

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 the 'open fields' start.^[1]

Curtilage in United States law

This distinction is important in United States law for cases dealing with burglary and with self-defense under the "Castle Doctrine." In some state law, such as Florida, burglary encompasses the English common law definition and adds (among other things) curtilage to the protected area of the dwelling into which intrusion is prohibited. Similarly, under Florida's Castle Doctrine a home-owner does not have to retreat within the curtilage.

The boundary between the home and the curtilage that surrounds it, on the one hand, and the open fields beyond the curtilage, on the other, is also important for the application of the prohibition against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. The warrant requirement of the Fourth Amendment applies only to the "home," which courts have construed to include the area immediately surrounding the house in which the intimate home activities occur, but not to the open fields beyond. The requirement that law enforcement officers obtain a warrant before searching a suspect's home extends, therefore, to the curtilage, but not to private property beyond the curtilage, even if their access to such "open fields" without the owner's permission would constitute a trespass. ^[2]

In United States v. Dunn, the Supreme Court identified four factors as critical when assessing the limits of curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."

In UK listed-building legislation

In the UK, listed building legislation uses the concept of curtilage. The consideration afforded to a listed building may extend to other structures or landscape within the curtilage of the primary structure, if the item(s) in the curtilage is old enough, and physically attached to the main building or otherwise important to the setting of the structure. Current legislation uses a cut-off date of 1947, so that later additions, while they may be within the curtilage, are not included in the listing designation.^[3]

The listing of a building or structure does not define its specific curtilage, and so this can become a matter of interpretation and contention. Various factors need to be taken into account, such as the way that the setting works with the primary object, the ownership of the land, the historic use of the land, and physical or visual boundaries, such as fences, walls and hedges.

Curtilage is frequently undefined until someone wishes to make a change to a structure or landscape in the immediate vicinity of a listed building. Some Local Planning Authorities (such as Bournemouth Borough Council) publish provisional curtilages, to assist property owners; but frequently the curtilage is left undefined until such time as it may be challenged in the planning process or in law.^[4]

In fiction

Curtilage is rarely mentioned by name in fiction; however, in the television show Dirty Sexy Money in the episode "The Facts", one of the characters, Letitia, is under house arrest and is arrested after being transported to the hospital, for violating her house arrest. A mention is made of a previous violation and her lawyer defends her right to be outside on her lawn, since it is covered under curtilage.

It is also mentioned in Law & Order Episode 17 (1991) "Sonata for Solo Organ." In this case the DA worries that curtilage is going to affect the admissibility of evidence found outside a suspect’s apartment in garbage bags (on the street ready for pick-up). Although it is a bit confusing why this would be an issue because the detectives entered the suspect's apartment building with a warrant, the episode was just a few years after a Supreme Court decision regarding this issue, so the writers may have just been playing around with the script to make it sound dramatic.

See also

• California v. Ciraolo
• United States v. Dunn
• Messuage

References

1. ^ "Legal briefing - The extent of listing 3". http://www.ihbc.org.uk/context_archive/97/legal/CTX97%5B6%5D.html. "Sir Graham Eyre QC, sitting as deputy judge, considered that in determining the nature and extent of the curtilage of a dwellinghouse, it is important that it should serve the purposes of the dwelling in some necessary or useful manner ... On the facts in this case, the rough part of the garden could not be described as part of the curtilage of the cottage, since it did not serve the cottage... One definition of curtilage often cited is ‘the ground which is used for the comfortable enjoyment of the house or building... serving the purpose of the house or building in some necessary or reasonably useful way’. This formulation, from Sinclair-Lockhart’s Trustees v Central Land Board (1951), is not very precise..." 
2. ^ Leonetti, Carrie (Spring). "Open Fields in the Inner City: Application of the Curtilage Doctrine to Urban and Suburban Areas". George Mason University Civil Rights Law Journal 15: 297. 
3. ^ Planning (Listed Buildings and Conservation Areas) Act 1990
4. ^ In Re West Norwood Cemetery (1997), the Chancellor of Southwark found that the curtilage of the 65 listed buildings inside West Norwood Cemetery extended across the whole 40 acres of the cemetery up to, and including, the boundary walls.