TexLawyer : Good afternoon. I'll be assisting you with your question.
TexLawyer : As long as your wife is lawfully living in the home, there is very little you can do. Under NY law, like most other states, someone who lives in a home has authority to allow guests into the home. Since you are not present in the home when this person comes over, you are in a difficult legal position to prevent someone from coming in when they were invited by a lawful resident of the home.
Customer: Many times, I am present in the home when this person comes over
TexLawyer : That puts you in a better position, legally. When you are home, you are both in possesion of and have owernship of the home.
Customer: What are my legal options to tell this person about whether he can stay or he should leave? I can physically thow him out.
TexLawyer : The best thing you can do when you are home is to tell this person to leave. If they do not, you can call the police.
TexLawyer : Trespassing is a criminal offense, and the police can force the person to leave or, potentially, be arrested.
Customer: Would the police be able to tell this person to leave if I am at home, and have asked him to leave, and he doesn't?
TexLawyer : The trespassing statute(which I will provide below) defines what it means to "enter or unlawfully remain" on the property. It gives the authority to decide who can or can't be there to the owner of the property:
TexLawyer : "Enter or remain unlawfully." A person "enters or remains unlawfully" in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.
TexLawyer : Here is the entire definition section of that statute:
TexLawyer : http://law.onecle.com/new-york/penal/PEN0140.00_140.00.html
TexLawyer : So, here is what I suggest: when you are there, tell him that: a) you are the owner; and b) that you do not want him there. At that point, he should be on notice that he is not allowed on the property. If you want to be doubly sure, put it in writing.
Customer: So, just to recap, I am the sole owner of the house, but if I am not present, my wife has the right to invite 'guests" over. But if I am present, and ask this person to leave, and he refuses, I can call the police and they will make him leave.
TexLawyer : Then, if you become aware that he's there when you are gone, you can call the police, as you've already put him on notice that he's not allowed on your property.
TexLawyer : Just one warning, however - I can't guarantee that the police will actually make him leave when you are not there, but that's your best bet. Often times, the police will take the path of least resistence. Since you aren't there to push the issue, I'm not sure what they will do in that situation.
Customer: Sorry to be redundant, but if I am there and ask him to leave, and he doesn't, the police can be called, and they will make sure he leaves?
TexLawyer : I think you can definately make him leave when you are there, but practically speaking, that may be more difficult whe you aren't.
TexLawyer : Correct.
TexLawyer : Let me rephrase: they should.
Customer: Thank you for your help.
TexLawyer : I say that because in my experience, the police tend to avoid getting involved when they sense a non-violent domestic dispute.
TexLawyer : My pleasure.
TexLawyer : If there isn't anything else I can do for you, please remember to "rate" my answer. Good luck.
TexLawyer : Also, if you have any questions in the future, you can direct them to me by including "this question is for texlawyer" in the title. Have a great day.