Duhaime's Law Dictionary

Dwelling Definition:

A place to live in.

Related Terms: Domicile, Abode

What does, and does not constitute a dwelling can be pertinent in criminal law, as theft within a dwelling is burglary, and for insurance purposes, as claimants seek to expand - and insurers to restrict the definition of the term.

Burglary Cases

In US v Castillo, Justice Edith Jones of the United States Court of Appeals wrote:

"[A]a dwelling is any structure, including a tent or vessel, that is used for human habitation."

Justice Huff of the Court of Appeals of South Carolina in State v Evans suggested that in burglary cases:

"[T]he test of whether a building is a dwelling house turns on whether the occupant has left with the intention to return. Temporary absence from a dwelling is irrelevant."

In Giles v. Virginia, Justice Jeroy Millette of the Supreme Court of Virginia defined the similar term dwelling house in the context of a burglary case as follows:

"Giles' argument fails, however, when he asserts the Commonwealth must prove the regularity of use in a temporal sense to establish that a structure constitutes a dwelling house. There is no such frequency requirement. A structure does not have to be physically inhabited every day or week or month to be a dwelling house.

"Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inciting more violence.

"The danger to personal safety that is sought to be protected does not dissipate simply because the structure is not occupied on a regular basis. The danger continues irrespective of frequency of habitation so long as when the structure is used, it is used for the purpose of habitation. A dwelling house does not lose its character as such simply because a person is absent for either a regular or irregular period of time."

In a 1968 case, Poff v State, Justice Thomson of the Court of Special Appeals of Maryland had before him the facts of John Preston Poff's break and entry into an unoccupied apartment. Poff fought the charge on that basis but Thomson upheld his conviction:

"The test as to whether or not a building is a dwelling house is whether or not it is used regularly as a place to sleep. No building becomes a dwelling by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there."

Insurance/Real Property Cases

In Shelter Mutual Insurance, an insurance claim was made in the aftermath of Hurricane Katrina by homeowners for damage to their driveway, alleging that it was part and parcel of coverage to their dwelling. Justice Henry Wingate of the United States District Court (Mississippi) rejected the claim adopting these words to define a dwelling as a structure within which a person lives:

"The house or other structure in which a person lives; a residence or abode. Building is defined as a usually roofed and walled structure built for permanent use (as for a dwelling).

"The driveway ... does not provide shelter or habitation to people, animals or property. True, the driveway is a part of the resident premises; however, this circumstance does not convert the driveway to a structure, or building.

In Cochran, Justice Paul Danielson of the Supreme Court of Arkansas had before him a claim against a structure the Cochrans had built in alleged contravention of a restrictive covenant which applied to dwellings:

"We have previously defined dwelling as a place to live in. Where, as here, the structure does not contain a kitchen, shower, or living area of some sort, it cannot serve as a place in which to live."


  • Cochran v. Bentley, 251 SW 3d 253 (2007)
  • Giles v. Commonwealth of Virginia, 672 SE 2d 879 (2009)
  • Poff v. State, 241 A. 2d 898 (1968)
  • Shelter Mutual Insurance Company v. Simmons, 543 F. Supp. 2d 582 (2008)
  • State v. Evans, 656 SE 2d 782 (2008)
  • US v. Castillo-Morales, 507 F. 3d 873 (2007)

Categories & Topics:

Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!