Back in the days of English common law, a person had an absolute right to defend their home. If a burglar came for their stuff, they could use force to repel the intruder—including lethal force.
But what about the patient, would-be burglar who’s hanging around outside your house, biding their time? Do you have to wait for someone to try and cross the threshold of your home before you can defend it?
To address these questions, we’ve developed the idea of curtilage, which refers to the area immediately surrounding a home or dwelling. If you want a more precise definition of curtilage, you may be out of luck. Courts haven’t agreed on exactly how to define it, but there is a four-factor test we can look at.
First Factor: Proximity
How close is the area to the home itself? Is it right outside the door? Is it a couple of acres to the west? The closer the area is to your actual dwelling, the better chance you have of arguing that it qualifies as curtilage. If the area in question is in an open field a mile away from your front door—that may be your property, but it’s probably not curtilage.
Second Factor: Protection from Observation
What steps have been taken to shield the area from the view of people passing by? Is there a row of trees or a privacy fence? The more effort that a resident has made to protect an area from observation, the greater the chance that it will be found to be an extension of the home.
Third Factor: Nature of Use
What is the area used for? Is it a driveway or a place where cars are parked? Do children play there? Or is it an untended patch of land where wildflowers grow? The more the use is associated with the activities and privacies of domestic life, the greater the chance that it will be deemed curtilage.
Fourth Factor: Enclosure
Is the area enclosed? The easy way to think about this is that a fenced-in yard strongly suggests curtilage. The purpose of many fences is to extend the privacy of the home. The more expansive the fence, however, the less persuasive this argument becomes.
This Is Not a Formula
Keep in mind that judges aren’t using a specific formula or mathematical equation to analyze curtilage claims. They’re considering factors, applying them as needed, and trying to decide if the area in question should be considered an extension of the home itself.