Other crimes - Burglary

Learning Outcomes

This article examines the common law crime of burglary and typical modern statutory variants, including:

• Identifying and accurately applying each element of common law burglary (breaking, entering, dwelling house, of another, nighttime, and specific intent to commit a felony therein) to bar-style fact patterns.
• Distinguishing actual breaking from constructive breaking, and both from mere trespass or lawful entry, with attention to consent and scope of permission.
• Determining when an entry has occurred, including entry by tools, projectiles, or instruments used solely to facilitate the intended felony.
• Recognizing what qualifies as a dwelling house, including curtilage, mixed-use residential–commercial buildings, and temporarily vacant or seasonal homes.
• Analyzing occupancy issues in the “of another” requirement (e.g., landlord–tenant, roommates, hotel guests, and co-owners) and predicting how they affect liability.
• Applying the nighttime element, identifying when it is satisfied or absent, and contrasting common law with modern statutory approaches.
• Evaluating whether the defendant had the requisite specific intent to commit a felony “therein” at the critical time of breaking and entry.
• Differentiating burglary from larceny, robbery, criminal trespass, arson, attempt, and related offenses in “most serious crime” MBE questions.
• Explaining how modern burglary statutes relax or modify common law requirements, including “entering or remaining unlawfully” formulations and graded degrees.
• Applying burglary rules to typical MBE-style hypotheticals, spotting common examiner traps, and eliminating attractive but incorrect answer choices.

MBE Syllabus

For the MBE, you are required to understand burglary as an offense against the habitation and related property interests, with a focus on the following syllabus points:

• The common law definition of burglary and the function of each element.
• The actus reus components: breaking and entering (including constructive breaking and instrumental entry).
• The meaning of “dwelling house” and “curtilage,” and how temporary vacancy or dual residential/business use affects the analysis.
• The “of another” requirement and the role of occupancy versus ownership.
• The nighttime requirement at common law and how modern statutes treat time of day.
• The specific intent to commit a felony therein, including timing of intent and common exam traps.
• Distinctions between burglary and other theft-related or habitation offenses (larceny, robbery, trespass, arson).
• The impact of modern statutory reforms (e.g., non-dwellings, daytime burglaries, intent to commit any crime, degrees of burglary).
• Interaction between burglary and other doctrines (attempt, merger, and felony-murder predicate felonies).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. At common law, which element distinguishes burglary from larceny?
   1. Taking property from the person of another.
   2. The use of force or threat of force.
   3. Breaking and entering a dwelling at night.
   4. The value of the property taken.
2. Defendant opens the front door of Victim's house at 1 AM using a stolen key, enters the hallway, and decides to steal a valuable painting. At common law, has Defendant committed burglary?
   1. No, because opening a door with a key is not a "breaking."
   2. No, because Defendant formed the intent to steal only after entering.
   3. Yes, because Defendant entered the dwelling of another at night with felonious intent.
   4. Yes, but only if Defendant actually takes the painting.
3. Which of the following structures would most likely qualify as a "dwelling house" for common law burglary?
   1. An abandoned warehouse used occasionally by homeless individuals.
   2. A detached garage located 50 feet from the main house.
   3. A houseboat currently occupied as someone's primary residence.
   4. An office building closed for the night.
4. At 2 PM, Landlord opens and enters Tenant’s apartment using a key, intending to steal Tenant’s jewelry. Under pure common law rules, which is the best answer?
   1. Burglary, because Landlord entered with felonious intent.
   2. No burglary, because it was not nighttime.
   3. No burglary, because Landlord owns the apartment.
   4. Burglary, because the key entry is a constructive breaking.
5. Dana enters a supermarket during open hours intending to shop. Once inside, she impulsively decides to steal a bottle of perfume and places it in her bag. Under common law (no statute), which crime has she committed?
   1. Burglary only.
   2. Burglary and larceny.
   3. Larceny only.
   4. Trespass only.

Introduction

Burglary at common law is a specific intent crime primarily aimed at protecting the security and sanctity of the home. It is traditionally defined as the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony therein. Every element must be satisfied for the offense to be complete.

Crucially, burglary protects habitation rather than ownership of property. The focus is on the invasion of a place where people sleep, at a time when they are especially vulnerable. For that reason, burglary is treated more seriously than many other property crimes even if no property is actually taken and no one is physically harmed.

Unlike larceny or robbery, the actual commission of the intended felony inside the dwelling is not required. The crime is complete as soon as there is a qualifying breaking and entering with the required felonious intent.

Modern statutes have greatly modified this common law definition, often:

• Eliminating the nighttime element.
• Extending burglary to non-residential structures.
• Treating any unlawful entry with intent to commit any crime as burglary.
• Criminalizing not just unlawful entry, but also “remaining unlawfully” in a building with criminal intent (e.g., hiding in a store after closing).

On the MBE, however, the classic common law definition is still frequently tested. Always check whether the question specifies that a modern statute applies; if it does not, assume the examiner wants the common law rule.

Key Term: Burglary
At common law, the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony therein.

Burglary is also important because it is one of the typical inherently dangerous felonies (the “B” in BARRK) that can serve as a predicate for felony murder. A solid command of burglary’s elements helps in homicide questions as well.

Elements of Common Law Burglary

The traditional mnemonic for burglary is:

• Breaking
• Entering
• Dwelling house
• Of another
• At nighttime
• With intent to commit a felony therein.

Each is separately examinable, and many MBE questions turn on the failure of a single element.

Breaking

The breaking element requires the use of some force—however slight—to create or enlarge an opening to enter the structure. Actual damage is not required.

At common law, a breaking must be trespassory: it must violate the occupant’s possessory rights. If the defendant has valid consent to enter, there is no breaking (unless that consent was obtained by fraud or threats).

Key Term: Breaking
The trespassory creation or enlargement of an opening into a structure by at least minimal physical force for the purpose of entry.

1. Actual Breaking

Actual breaking involves a physical act that creates or enlarges an opening so that entry can be made.

Examples of actual breaking:

• Opening a closed but not locked door.
• Pushing further open a door that is partially ajar to create space to walk through.
• Raising a closed or partially open window.
• Cutting or removing a window screen.
• Picking or forcing a lock on an exterior or interior door.
• Forcing open a locked interior door or locked closet within a dwelling.

Not a breaking (at common law):

• Walking through a door that is already standing wide open.
• Climbing through a fully open window without touching or moving it.
• Entering through a large hole already existing in a wall without enlarging it.
• Breaking an item inside the dwelling (e.g., smashing a box or trunk) when no doorway, window, or other access point is altered. This may be part of another crime, but it does not satisfy burglary’s breaking requirement.

Modern authorities and bar examiners generally accept that enlarging an existing opening (e.g., pushing a slightly open door fully open) counts as a breaking because force was used to gain entry, even if the opening was not created from scratch. Barbri and similar outlines expressly treat this as a breaking under the “better view.”

2. Breaking with Keys and Lock-picking

A common tested variation involves entry using a key:

• Using a stolen or duplicated key to open a locked door is normally treated as a breaking because the defendant defeats the security barrier without consent.
• Using a key that the defendant is authorized to use at that time and for that purpose (e.g., a tenant entering their own apartment with their own key during the lease term) is not a breaking.
• Picking a lock with tools is a classic breaking, even if the lock and door suffer no lasting damage.

The MBE may not always spell out whether the key use is authorized; you must infer it from facts such as the relationship between the parties and any restrictions described.

3. Constructive Breaking

Sometimes the defendant does not use physical force, but still causes an entry in a way the law treats as a breaking. This is called constructive breaking.

Key Term: Constructive Breaking
Gaining entry into a structure by fraud, threats, intimidation, or similar means that substitute for physical force.

Constructive breaking occurs when the defendant gains entry by:

• Fraud or deception.
• Threats or intimidation.
• Collusion with someone inside (e.g., a dishonest servant).
• Entry through a chimney (traditionally treated as a breaking, because chimneys are not normal access routes).

Examples:

• Pretending to be a utility worker or police officer to induce the resident to open the door and allow entry.
• Lying about an emergency (“Your mother was in an accident; I need to come in and call her doctor”) to gain entry.
• Threatening to harm the resident unless the door is opened.
• Arranging with a servant to open the door and let the defendant in to commit a crime.
• Having a child or accomplice inside open the door in coordination with the plan to commit a felony.

In each case, the apparent consent is vitiated by the improper means, so the law treats the entry as trespassory and the ruse as a constructive breaking.

4. Trespass Requirement and Consent

A breaking must be trespassory. If the resident voluntarily consents to the defendant’s entry, and that consent is valid, there is no breaking—even if the defendant uses some force to open the door.

• Consent can be explicit (e.g., “Come in”) or implied (e.g., customers entering a store during business hours).
• If consent is procured by fraud, threat, or intimidation, the consent is invalid and the entry is treated as a constructive breaking.
• Consent may be limited in time or scope. Exceeding that scope can restore the trespass element.

Examples of limited consent:

• A store open to the public gives implied consent to enter the sales floor during business hours, not to enter a locked “employees only” stockroom. Forcing open a locked stockroom door can be a breaking into a separately secured portion.
• A homeowner who invites a plumber in to repair a sink consents to entry for that purpose. If the plumber later pries open a locked bedroom door to steal jewelry, the breaking into the bedroom is trespassory; the initial lawful entry into the house does not immunize later trespasses.

Consent may also be terminated:

• A customer who remains hidden in a store after closing has “remained unlawfully” once the store is closed and consent is impliedly revoked.
• Under common law, this might support trespass and, with a later breaking into an interior room, possibly attempted burglary. Under modern “remaining unlawfully” statutes, it often supports burglary (see below).

5. Breaking “of the House” and Inner Doors

The breaking must be directed at the structure (or a separately secured part of it), not just at personal property inside.

• Breaking to enter a locked closet, bedroom, or wall safe that is part of the dwelling can satisfy the breaking requirement if the defendant has already lawfully entered the outer structure.
• Merely breaking open a box, trunk, suitcase, or other container within the dwelling does not constitute a breaking of the house.

This distinction is tested with facts like:

• D is lawfully inside V’s house as a party guest. D forces open V’s locked study door to steal valuables. Forcing the study door is a breaking into a separately secured part of the dwelling; if D also has the requisite intent, burglary is possible even though D came into the house lawfully.
• By contrast, if D opens an unlocked door and then simply smashes a jewelry box on an open shelf, the smashing does not transform the situation into burglary; it is still theft inside, but without a breaking of the structure.

6. Breaking to Exit Is Not Enough

The breaking must be for the purpose of gaining entry. Breaking a door or window to get out of a dwelling, after entering without a breaking, does not satisfy common law burglary.

Classic bar example:

• D enters a department store during business hours with no criminal intent. He hides until closing, then decides to steal and later smashes a window to escape. There is no breaking to enter, so there is no completed common law burglary (though there may be larceny and criminal mischief; some jurisdictions also recognize “house-breaking” or treat this scenario as burglary under modern statutes that omit breaking).

Entering

The entering element is satisfied when any part of the defendant’s body, or certain instruments the defendant uses, crosses the threshold of the structure.

Key Term: Entering
The intrusion of any part of the body, or an instrument used to commit the intended felony, into the interior space of the structure.

Key points:

• Body entry: Inserting a hand, foot, arm, leg, or even a finger through a window or door is enough, even if only for a moment.
• Instrumental entry: Inserting an instrument or object into the structure counts as entry if the instrument is used to accomplish (or begin accomplishing) the intended felony (e.g., a tool to steal property or a weapon to commit an assault).

Using a tool merely to create the opening—such as using a crowbar to pry open a window—often satisfies the breaking requirement but does not by itself constitute entry until some portion of the object enters the protected space for the purpose of committing the felony.

Examples:

• Reaching a hand through a cut-out section of window glass to open the window latch is an entry.
• Extending a crowbar into the dwelling to pry open a safe is an entry, because the tool is being used to further the felony (the theft).
• Firing a bullet into a dwelling with intent to kill an occupant can constitute an entry, as an inanimate object is projected inside for the purpose of committing a felony.
• Lowering a hook or stick through an open skylight to snag a purse on a table is an entry.

By contrast:

• Sliding a thin metal strip between the door and the jamb to trip the latch may not be treated as an entry if the strip never crosses the vertical plane of the interior; exam questions that drill down this far will usually tell you whether any part of the tool or body was inside.

Entry requires only momentary intrusion; it is not necessary that the defendant’s entire body be inside or that they be able to stand and move around within the building.

Dwelling House

Common law burglary requires that the structure be a dwelling house.

Key Term: Dwelling House
A structure regularly used for sleeping purposes, including the main residence and certain associated structures within its curtilage.

The “dwelling” requirement reflects the historical concern with protecting people where they sleep, not simply protecting property.

1. “Used for Sleeping Purposes”

A structure is a dwelling if it is used with some regularity as a place to sleep.

Clearly dwellings:

• Single-family homes, apartments, condos, and townhouses where people live and sleep.
• Hotel and motel rooms currently occupied by guests.
• College dormitory rooms during the academic term.
• Vacation homes that are periodically inhabited (e.g., a beach house used every summer) even when temporarily unoccupied.

Not dwellings:

• A house or apartment under construction that has never been occupied.
• A building that has been abandoned, with no intent for anyone to return to live there.
• A storage shed never used for sleeping, standing far from the main house and used solely for storing lawn equipment.

The key is whether the structure is actually used, or clearly intended to be used, as a place where people sleep. A building designed as a residence but not yet occupied is not a dwelling at common law, even if almost finished.

2. Temporary Absence and Seasonal Use

Temporary absence does not change a dwelling’s character:

• A home remains a dwelling while its residents are on vacation, in the hospital, or away for the weekend.
• A seasonal cabin used each year for several weeks remains a dwelling in the off-season, so long as the owner intends to return.

However:

• Once the last occupant permanently moves out with no intent to return, the structure loses its character as a dwelling.
• If a house is being renovated but is unoccupied, you must ask whether the owner intends to resume living there soon (still a dwelling) or has abandoned it (no longer a dwelling).

3. Mixed-Use Structures

A building can serve as both a residence and a place of business:

• A store with an apartment upstairs where the owner lives.
• A farmhouse used both for living and farming.
• A bar with a back room where the bartender sleeps.

If the structure is regularly used for sleeping, it is a dwelling for burglary purposes even though it also serves commercial functions.

Examiners may give you facts such as “the owner lived in an apartment on the second floor of the building and slept there every night.” Even if the defendant breaks into the ground-floor store, many courts treat the entire building as a dwelling, because it forms part of the same residential structure.

4. Curtilage and Outbuildings

Structures physically separate from the main house can be treated as part of the dwelling when they fall within the curtilage.

Key Term: Curtilage
The land and buildings immediately surrounding a dwelling that are used in connection with it and regarded as part of the home environment.

Typical curtilage examples:

• A detached garage close to the house and used for household purposes.
• A nearby shed used for storing household tools, bikes, or garden equipment.
• A small barn adjacent to a farmhouse that is part of the residential compound.

Less likely to be curtilage (under common law burglary):

• A large, remote barn used primarily for commercial storage, several hundred yards away across fields.
• A detached warehouse several blocks from the residence, used solely for the owner’s business.
• A stand-alone storage unit in a commercial storage facility across town.

On the MBE, if the structure is physically close to the home, functionally tied to it, and used for ordinary residential activities, you can generally treat it as within the curtilage and thus as part of the “dwelling” for burglary purposes.

5. Non-Residential Structures

At common law, structures used only for business purposes (e.g., an office building, standalone shop, or warehouse) are not dwellings and therefore cannot be the subject of common law burglary.

Modern burglary statutes often expand the offense to cover these structures (e.g., “any building” or “any occupied structure”). When the question is clearly using a modern statute, non-residential buildings may be included; if the question is silent and recites the classic definition, assume the structure must be a dwelling.

The MBE likes to present fact patterns involving offices, stores, and schools and then ask whether the defendant is guilty “under the common law of burglary” versus “under a modern burglary statute.” Read carefully.

Of Another

The dwelling must be “of another.”

Key Term: Of Another
Occupied as a dwelling by someone other than the defendant; occupancy and possessory rights, not legal title, are the key.

The focus is on possessory occupancy, not ownership on paper:

• A landlord who breaks into a tenant’s leased apartment at night with felonious intent can commit burglary; the apartment is the dwelling “of another” because the tenant has the possessory right to occupy it.
• A hotel owner who enters a guest’s room at night to steal can burglarize that room; the guest has possessory rights during the stay.
• An estranged spouse who has moved out and has no right to enter can burglarize the other spouse’s residence.

By contrast, at common law a person generally could not burglarize their own dwelling. Someone who still has the right to occupy the home (e.g., one co-tenant in a joint tenancy) is often viewed as entering their own dwelling, even if their motives are criminal.

Modern statutes, however, sometimes extend burglary to cover unlawful entries into one’s own home in certain circumstances (for example, when a restraining order or court order removes the right to occupy). Unless the question specifies such a statute, assume the common law rule: the structure must be the dwelling of someone other than the defendant, in the sense of present possessory occupancy.

Exam traps in this area:

• Landlord–tenant: The tenant has the superior possessory right during the lease term. A landlord sneaking in at night to steal is burglarizing the tenant’s dwelling; the tenant entering their own apartment cannot burglarize it.
• Roommates: One roommate breaking into and entering another roommate’s locked private bedroom at night with felonious intent can commit burglary because that bedroom is treated as the dwelling “of another” with respect to the intruding roommate. The key is whether the other occupant has a space reserved for their exclusive use.
• Owner vs guest: An owner breaking into a guest’s locked room (as in Worked Example 1.3) can be burglarizing the dwelling of another because the guest has current possessory rights in that room.

At Nighttime

The breaking and entering must occur at nighttime under the common law definition.

Key Term: Nighttime
The period between sunset and sunrise during which there is insufficient natural light to discern a person’s face.

Several points matter for exam purposes:

• The classic test is functional: if a person’s facial features cannot be distinguished by natural light, it is nighttime.
• Many questions will simply specify a clock time (e.g., “11:00 p.m.” or “3:00 a.m.”), which can safely be treated as nighttime unless unusual facts (like a high-latitude summer sun) are given.
• Daytime entries (e.g., 2 p.m.) cannot satisfy common law burglary’s nighttime element, though they might be burglaries under modern statutes.

Timing subtleties:

• Some authorities required that both the breaking and the entering occur at night. Others treated it as burglary if either the breaking or the entry (usually the latter) occurred at night. The MBE generally favors the stricter view that both must occur at night for classic common law burglary.
• If the defendant breaks in during the day and returns at night through the same opening, many exam questions will characterize this as attempted burglary if the nighttime element is not clearly met with both breaking and entry.

Modern statutes often eliminate the nighttime requirement or treat nighttime entry as an aggravating factor rather than an element.

Intent to Commit a Felony Therein

Burglary is a specific intent crime. The defendant must have the intent to commit a felony inside the dwelling at the time of the breaking and entering.

Key Term: Intent (for Burglary)
The specific intent, existing at the time of the breaking and entering, to commit a felony inside the dwelling.

Key aspects:

1. Timing of Intent

The intent must exist at the moment of entry (and, under the strictest formulation, at the moment of breaking as well).

Exam trap:

• If the defendant lawfully or unlawfully enters without felonious intent, and only later—once already inside—decides to commit a felony, there is no common law burglary.

Examples:

• A neighbor enters to borrow sugar with consent, then notices and impulsively steals a laptop. This is larceny, not burglary.
• A landlord enters a tenant’s apartment with consent for a repair, later decides to steal jewelry; again, this is larceny, not burglary.
• Dana in Question 5 above enters intending only to shop and later decides to steal. She is guilty of larceny (if all elements are met), but not burglary at common law, because she lacked felonious intent at entry.

The intended felony is often larceny, but it could be any felony: murder, rape, robbery, aggravated battery, arson, etc.

2. Intent “Therein”

The felony must be intended inside the dwelling:

• Entering with intent to commit a felony after leaving the dwelling (for example, intending to steal a car parked outside later) does not satisfy the “therein” requirement.
• Entering with intent to disable an alarm system inside the home as a step toward stealing the homeowner’s property is sufficient because the felony (larceny) involves conduct inside.
• Entering to commit a conspiracy meeting inside the house that culminates in a felony elsewhere can raise more subtle issues, but MBE questions rarely push that far; they will ordinarily specify that the actual felonious act is to take place in the structure.

3. Felony Requirement and Mistake About Felony Status

Under strict common law:

• The intended crime had to be a felony. If the intended offense was only a misdemeanor, there was no burglary, even if all other elements were present.
• Modern statutes often relax this, requiring only intent to commit “a crime” or “any crime, including theft” inside.

On the MBE:

• If the call of the question clearly invokes common law burglary, assume “felony” is required.
• If the question quotes a statute that says “intent to commit a crime” or “intent to commit theft,” you do not need to classify the intended offense as felony or misdemeanor.

Intent can be negated or complicated by mistake:

• If D breaks and enters intending to steal a watch he believes belongs to V, but under the law D actually has a superior right to the watch, he lacks the intent to commit larceny because he does not intend to steal property “of another.”
• If D believes the intended crime is a felony but it is actually only a misdemeanor (or vice versa), the result can vary by jurisdiction. The MBE usually avoids this wrinkle by making clear that the intended crime is a felony.

4. Completion of the Felony Not Required

Burglary is complete upon breaking and entering with the required intent:

• The felony need not succeed.
• Abandonment of the felony after entry does not negate the already-formed intent.
• A defendant can be guilty of both burglary and attempt to commit the intended felony if the felony itself is not completed (e.g., burglary and attempted murder).

5. Proving Intent and Voluntary Intoxication

Intent is almost always proven circumstantially on exams:

• Possession of burglary tools.
• Time of entry (e.g., sneaking in at 3 a.m.).
• Moving toward valuable property or bedrooms.
• Prior threats or statements (“I’m going to rob him tonight”).

Because burglary is a specific intent crime:

• Voluntary intoxication can potentially be raised as a defense that may negate the specific intent to commit a felony. However, on the MBE, intoxication is usually tested in other contexts; if both appear, read carefully whether the intoxication reasonably negates the formation of felonious intent.

Worked Example 1.1

Defendant sees a window on Victim's house slightly ajar (open about two inches) at 11 PM. Defendant wants to steal Victim's laptop. Defendant pushes the window open further, reaches inside, releases the window latch, climbs into the house, but is immediately apprehended by Victim before taking anything. Has Defendant committed common law burglary?

Answer:
Yes. Defendant enlarged an opening (pushing the window further open constitutes a breaking). He placed part of his body (his hand) inside the structure (entering). It was Victim's house (dwelling of another) and occurred at 11 PM (nighttime). Defendant had the intent to commit larceny (a felony) inside at the time he broke and entered. The fact that he did not complete the larceny is irrelevant.

Worked Example 1.2

At midnight, Defendant crawls through a fully open basement window of Victim's home, intending to assault Victim once inside (a felony). Before finding Victim, Defendant hears a noise and flees without committing the assault. Has Defendant committed common law burglary?

Answer:
No. Although all other elements are present (entering, dwelling of another, nighttime, intent to commit a felony), there was no breaking because Defendant entered through a window that was already wide open. Crawling through the fully open window, without altering it, does not satisfy the breaking requirement at common law. Defendant could be guilty of attempted burglary or attempted felony assault, but not completed common law burglary.

Worked Example 1.3

Nick invites several friends to stay at his beach house, which he uses every summer. One evening, Nick notices that Mary, a guest, has an expensive watch. Later that night, while everyone is at the beach, Nick pries open a locked kitchen window, enters, breaks open Mary’s locked bedroom door, and steals the watch. Meanwhile, Quinn, a neighbor curious about the interior of the house, notices the half-open window. He raises the window further and climbs inside just to look around, with no criminal intent. Once inside, he sees a wallet on a nightstand and decides on the spot to take cash from it. Are Nick and Quinn guilty of common law burglary?

Answer:
Nick is guilty of common law burglary. The beach house is a dwelling (it is regularly used for sleeping), it is the dwelling “of another” with respect to Mary, who has possessory rights in her guest bedroom, and Nick both broke and entered at nighttime with the intent to commit a felony (larceny) therein. The fact that he owns the house does not prevent the bedroom from being treated as “of another” for burglary purposes because Mary had occupancy rights. Quinn is not guilty of common law burglary. Although he broke and entered a dwelling at night, he lacked intent to commit a felony at the time of entry—his initial purpose was mere curiosity. He only formed the intent to steal after entering, which is too late for burglary. He is, however, guilty of larceny for taking the cash.

Worked Example 1.4

Defendant wants to commit a felonious assault on Victim inside Victim’s apartment. Defendant knocks on the locked door and, when Victim asks who it is, Defendant lies: “I am a friend of your brother; he asked me to bring you an urgent message.” Victim opens the door and invites Defendant in. Defendant enters and immediately attacks Victim. Has Defendant committed burglary?

Answer:
Yes. Defendant obtained entry by fraud, which is a constructive breaking. Victim’s apartment is a dwelling “of another.” The entry occurred at night (assume the facts specify nighttime), and Defendant had the specific intent to commit a felony (aggravated assault) at the time of the constructive breaking and entry. Burglary does not require that the intended felony be a theft crime.

Worked Example 1.5

Defendant walks into a clothing store during business hours, intending to buy a shirt. The store later closes for the day, but Defendant hides in a changing room and remains inside without permission. After midnight, Defendant breaks open a locked office door and steals cash from the safe. The jurisdiction has a modern burglary statute that requires “entering or remaining unlawfully in a building with intent to commit a crime inside,” without a nighttime or dwelling requirement. Is Defendant guilty of burglary under the statute?

Answer:
Yes. Although Defendant initially entered lawfully during business hours, he remained unlawfully after closing and then broke into a locked office with the intent to commit theft. Under this modern statute, remaining unlawfully in a building with criminal intent satisfies the actus reus, and the office is part of the building covered by the statute. Common law elements like “dwelling” and “nighttime” do not apply because the statute omits them.

Worked Example 1.6

At 2 PM, Landlord uses a key to open and enter Tenant’s apartment, intending to steal Tenant’s laptop. Landlord walks in, takes the laptop, and leaves. The jurisdiction follows pure common law burglary. What crimes, if any, has Landlord committed?

Answer:
Under pure common law burglary, Landlord is not guilty of burglary because the entry did not occur at nighttime. There is also no “breaking” in the burglary sense: Landlord used a key and, as owner, normally has a right of access, so any trespass analysis becomes fact-sensitive and varies by jurisdiction. The MBE focuses instead on the missing nighttime element. Landlord is clearly guilty of larceny, because he took Tenant’s personal property with the intent to permanently deprive Tenant of it. In a modern statute that lacks a nighttime requirement and focuses on “unlawful entry,” burglary might be possible, but under classic common law, it is not.

Worked Example 1.7

At 11 PM, Paula walks through the front door of an office building that was left open. She needs money and plans to steal computers inside. She does not open or move any doors or windows but simply walks through the already open front door and carries off a computer. Assume the jurisdiction applies strict common law burglary rules and treats the building as non-residential office space. Is Paula guilty of burglary?

Answer:
No. Two elements fail. First, there is no breaking. Paula used an already open door without applying any force to create or enlarge an opening. Second, the building is a non-residential office, not a dwelling. At common law, burglary is limited to dwellings. Paula is guilty of larceny (she took personal property of another with intent to permanently deprive), but not burglary. Under many modern statutes that cover “any building” and that do not require breaking, a burglary conviction would be possible, but not under pure common law.

Worked Example 1.8

Don breaks a lock on the back door of a small building that houses both a ground-floor grocery store and an upstairs apartment where the owner sleeps every night. It is 1 AM. Don’s sole plan is to steal cigarettes from the store area; he does not intend to enter the apartment. Is the building a dwelling for purposes of common law burglary?

Answer:
Yes. The building is regularly used for sleeping because the owner lives in the upstairs apartment. A structure does not lose its status as a dwelling merely because part of it is used for commercial purposes. Breaking and entering into any part of such a mixed-use building at night with felonious intent can constitute common law burglary, even if the defendant never enters the sleeping quarters.

Worked Example 1.9

Eve breaks the lock on the front door of a newly constructed house that is staged for sale but has never yet been occupied. It is 3 AM. Eve enters intending to steal fixtures. Has she committed common law burglary?

Answer:
No. Although Eve broke and entered at nighttime with the intent to commit a felony, the structure is not yet a “dwelling house” at common law because no one has moved in or used it as a sleeping place. Therefore, the dwelling element is missing. Eve is guilty of larceny or attempted larceny and possibly other property offenses, but not of common law burglary. Under a modern statute that defines burglary more broadly as entry into any “building,” she could be guilty of statutory burglary.

Worked Example 1.10

Frank walks through the open front door of Gina’s house at 1 AM to attend a party to which he was invited. After the party ends and the guests leave, Frank hides in a closet, intending to sleep overnight without Gina’s permission but with no plan to commit a felony. At 3 AM, while wandering the house, he impulsively decides to steal Gina’s laptop and takes it. Under common law, has Frank committed burglary?

Answer:
No. Frank entered the dwelling with Gina’s consent and with no felonious intent, so there was no breaking or burglary at the time of entry. His decision to stay after consent ended makes him a trespasser, and his later decision to steal supports larceny, but the felonious intent arose only after entry was complete. Common law burglary therefore fails. In a jurisdiction with a modern statute that criminalizes “remaining unlawfully in a dwelling with intent to commit a crime,” Frank’s conduct might qualify as burglary, but not under the strict common law definition.

Distinguishing Burglary from Related Crimes

On the MBE, burglary frequently appears alongside other property or habitation offenses. Distinguishing them is essential.

Burglary vs. Larceny

• Larceny is the trespassory taking and carrying away of the personal property of another with intent to permanently deprive.
• Burglary focuses on the unlawful invasion of a protected structure with felonious intent; no taking is required.

Key distinctions:

• Burglary does not require that any property actually be taken; larceny does.
• Larceny does not require entry into a building or nighttime; burglary does (at common law).
• Larceny is not a lesser included offense of burglary. Burglary does not include the “taking and carrying away” element of larceny.

Consequences:

• A defendant who breaks into a house at night intending to steal and successfully steals can be convicted of both burglary and larceny.
• If the defendant breaks and enters with intent to steal but is caught before taking anything, the defendant can still be convicted of burglary (the more serious crime on these facts) even though no larceny occurred.

Burglary vs. Robbery

• Robbery is larceny from the person or presence of another, by force or threat of force.
• Burglary focuses on unauthorized entry into a protected structure, often when no one is directly confronted.

Key relationships:

• Robbery includes every element of larceny plus force or intimidation, so larceny is a lesser included offense of robbery.
• Burglary is separate and does not merge with robbery. A defendant can be convicted of both burglary (for entering with felonious intent) and robbery (for taking property by force) arising from the same incident.

Typical exam pattern:

• D breaks into V’s home at night intending to steal. Once inside, D threatens V with a knife and demands money. D leaves with the money.
  • Burglary: breaking and entering a dwelling at nighttime with intent to commit a felony (robbery or larceny) therein.
  • Robbery: taking property from V by threat of force.
  • Larceny merges into robbery but not into burglary; D can be convicted of burglary and robbery.

Burglary vs. Criminal Trespass

Key Term: Criminal Trespass
Unauthorized entry into or remaining on the property of another, usually without any requirement of intent to commit a felony or of breaking.

Criminal trespass is generally a lesser property offense:

• It typically requires only unauthorized entry or remaining, with no need for breaking.
• It does not require intent to commit a felony or any other crime.

Consequences:

• If D enters a building without permission but with no felonious intent, D may be guilty of trespass but not burglary.
• If D lawfully enters (e.g., as a customer) and simply overstays without criminal intent, trespass might still apply, but burglary will not.

Exam trick:

• When burglary fails because the defendant lacked felonious intent at entry or because the structure is not a dwelling, the best answer may be criminal trespass plus any completed theft.

Burglary vs. Attempt

Burglary can appear both as a completed offense and as an attempt:

• A defendant who attempts to break in but never actually gains entry (e.g., tries to pry open a window but fails) may be guilty of attempted burglary if there is a substantial step toward the crime with the required intent.
• If all burglary elements are completed, the defendant can be guilty of both burglary and attempt to commit the intended felony (if the felony itself is not completed).

When identifying the most serious crime:

• Completed burglary is more serious than attempted burglary.
• If breaking is incomplete (e.g., no entry, or no nighttime element, or no dwelling), the correct answer may be attempted burglary rather than burglary.

Burglary vs. Arson

Arson is the malicious burning of the dwelling of another (modernly, usually any structure). Burglary and arson both protect the habitation:

• Burglary: invasion of the dwelling with felonious intent.
• Arson: destruction or damage of the dwelling by fire (or, under modern statutes, by explosives).

They can coexist:

• A defendant who breaks into a house at night intending to set it on fire may be guilty of both burglary and arson (if the fire is actually set). Neither offense merges into the other.

Modern Statutory Changes

Key Term: Modern Burglary
A statutory offense that typically criminalizes unlawful entry into a building or structure (often not limited to dwellings or nighttime) with intent to commit a crime inside.

Modern burglary statutes have modified the common law definition in several key ways. On the MBE, when a statute is quoted or described, apply the statute as written instead of importing common law elements that the statute omits.

1. Breaking Requirement Relaxed or Eliminated

Many statutes treat any unlawful entry (or “entering or remaining unlawfully”) as sufficient—no need for an actual or constructive breaking.

Consequences:

• Entry through an already open door can constitute statutory burglary if the defendant lacks consent and has the requisite criminal intent.
• Hiding in a store until closing and remaining inside after consent has ended (“remaining unlawfully”) can support burglary even without a breaking.

Statutes that still mention “breaking” often interpret it broadly to include any unauthorized entry, departing from the technical common law meaning.

2. Expanded Structures: Residential and Commercial Burglary

Modern statutes frequently expand burglary to apply to:

• Stores, offices, and schools.
• Warehouses and storage facilities.
• Locked vehicles, boats, or trailers.
• Occupied structures like tents or houseboats.

Some states create degrees of burglary:

• First-degree (or residential) burglary: entry into a dwelling (often with aggravating factors like nighttime, a weapon, or presence of occupants).
• Second- or third-degree burglary: entry into non-dwellings (e.g., commercial buildings) or vehicles.

The MBE will usually tell you if a statute covers “any building” or “any occupied structure,” signaling that non-dwellings are included.

3. Nighttime Requirement Eliminated or Downgraded

Many statutes:

• Eliminate the nighttime requirement entirely, making daytime burglaries punishable.
• Treat nighttime entry as an aggravating factor that increases the degree or sentence but is not an element of the basic offense.

If the problem states that burglary in the jurisdiction has “no nighttime requirement,” you should ignore the timing and focus on other elements.

4. Intent to Commit “a Crime” or “Theft”

Instead of “intent to commit a felony,” many modern statutes require only:

• Intent to commit any crime inside, or
• Intent to commit a theft or specified list of crimes inside.

Implications:

• Entering with intent to commit a misdemeanor assault may suffice for burglary under such a statute, even though it would not under strict common law.
• The exam might test whether the intended conduct fits the statutory phrase “a crime,” “theft,” or similar language; read carefully.

5. “Entering or Remaining Unlawfully”

Modern codes (often influenced by the Model Penal Code) criminalize not only unlawful entry but also remaining unlawfully in a building with criminal intent.

Examples:

• A customer who enters a supermarket lawfully, then hides until after closing to steal, “remains unlawfully” once the store closes and can be guilty of burglary even without a traditional breaking.
• A guest who overstays consent and stays overnight in a dwelling, forming criminal intent while unlawfully remaining, may commit burglary even without a traditional breaking.

This resolves some common law issues where the defendant formed intent only after lawful entry.

6. Degrees and Aggravating Factors

Statutes often classify burglary into degrees based on:

• Whether the structure is a dwelling or non-dwelling.
• Whether a person (other than a participant) is present.
• Whether the defendant is armed with a deadly weapon or causes injury.
• Whether the offense occurs at nighttime.

On the MBE, you do not need to memorize any particular jurisdiction’s scheme, but you should:

• Recognize when the statute imposes a higher penalty for dwelling burglaries or burglaries involving weapons.
• Be able to rank degrees if the question says that first-degree is the most serious and third-degree the least serious.

Burglary and Merger

Burglary does not merge with the predicate felony:

• A defendant can be convicted of both burglary and the felony they intended and completed (e.g., burglary and murder, burglary and robbery, burglary and larceny).
• A defendant can also be convicted of both burglary and attempted predicate felony (e.g., burglary and attempted rape).

This contrasts with robbery, where larceny is a lesser included offense and merges.

Exam Warning and Strategy

Several recurring traps appear in MBE burglary questions:

• Missing element: One element (breaking, dwelling, nighttime, or intent at entry) quietly fails. Resist jumping to “burglary” just because the fact pattern has someone sneaking into a house.
• Timing of intent: Carefully track when the defendant formed criminal intent. If the intent arises only after entry, common law burglary fails.
• Common law vs statute: Always note whether the question specifies “common law” or quotes a statute. Do not impose common law requirements that a statute does not contain.
• Dwelling status: Pay attention to facts about occupancy (vacations, renovations, abandonment, mixed use). A non-occupied construction site is not a dwelling; a vacation cabin usually is.
• Ownership vs occupancy: Ask who has the right to possess the premises. Landlords, hotel owners, and co-owners can burglarize premises that are currently occupied by someone else.

When the call of the question asks for “the most serious offense of which D can be convicted,” consider:

• Whether burglary is complete.
• Whether the intended felony is completed (so burglary plus the felony).
• Whether only attempt (burglary or felony) is possible.

Key Point Checklist

This article has covered the following key knowledge points:

• Common law burglary consists of: (1) a breaking, (2) an entry, (3) of the dwelling house, (4) of another, (5) at nighttime, (6) with the specific intent to commit a felony therein.
• Breaking can be actual (physical force to create or enlarge an opening) or constructive (fraud, threats, or similar means), but must be trespassory and directed at the structure or a separately secured part of it.
• Opening an already open door or window without moving it is not a breaking at common law; pushing it further open is.
• Entry is satisfied when any part of the body, or an instrument used to accomplish the intended felony, passes into the interior of the structure, even momentarily.
• A dwelling house is a structure regularly used for sleeping; temporary absence does not destroy dwelling status, but unoccupied construction or abandoned buildings are not dwellings.
• Curtilage includes certain outbuildings near and functionally connected to the home, which can share the dwelling’s burglary protection.
• “Of another” focuses on occupancy and possessory rights, not legal ownership; tenants, guests, and hotel occupants can have protected dwellings even against landlords or owners.
• Nighttime at common law is the period when natural light is insufficient to recognize a person’s face; many modern statutes discard this element or treat it as an aggravator.
• Burglary requires specific intent to commit a felony inside the dwelling at the time of the breaking and entering; later-formed intent is insufficient for common law burglary.
• The intended felony need not be theft; any felony (e.g., rape, murder, aggravated assault) will satisfy the intent element under common law.
• Burglary is complete upon breaking and entering with the required intent; completion of the intended felony is not required, and burglary does not merge with the intended felony.
• Burglary is distinct from larceny, robbery, trespass, arson, and attempt; larceny is not a lesser included offense of burglary.
• Modern burglary statutes often eliminate the breaking and nighttime requirements, extend the offense to non-dwellings and vehicles, and require only intent to commit any crime inside, sometimes including “remaining unlawfully.”
• Many statutes create degrees of burglary based on whether the structure is a dwelling, whether people are inside, whether a weapon is used, and time of day.
• Careful attention to timing, structure type, occupancy, and the jurisdiction’s definition is essential to correctly analyze burglary issues on the MBE.

Key Terms and Concepts

• Burglary
• Breaking
• Constructive Breaking
• Entering
• Dwelling House
• Curtilage
• Of Another
• Nighttime
• Intent (for Burglary)
• Criminal Trespass
• Modern Burglary