We’ve been debating at the office whether a person can be convicted of Home Invasion Second Degree if the dwelling is vacant. We got Phil to do some research and here’s the best answer:
The issue is whether a person can be convicted of Home Invasion Second Degree of a vacant home. The short answer is yes. Under the Michigan statute, for a person to be guilty of home invasion second degree, the structure in question must be a “dwelling,” defined as a structure or shelter, which is used permanently or temporarily as a place of abode. In 2008, the Michigan Court of Appeals determined that if a structure is temporarily vacant but the inhabitant intends to return, it remains a dwelling. People v. Powell, 278 Mich. App. 318, 322 (2008). The court determined that the duration of the inhabitant’s absence and habitability of the structure do not preclude it from being a dwelling, because the establishment of the structure as a dwelling depends upon the inhabitant’s intent to return. Id. In a 2009 unpublished Michigan Court of Appeals case, People v. Hogan, Docket No. 286421, the court applied the Powell case to a vacant house that was up for sale. The court concluded that because the owner purchased the house for the purpose of selling it to others to reside in, never intended for it to be used for any other purpose, and kept it in move-in condition, it was a dwelling for the purpose of Home Invasion Second Degree. As a result of Hogan, a court would likely conclude that a vacant rental home is also a dwelling.