Concept
Burning Your Own Dwelling
Arson
Burning Your Own Dwelling
The fourth element of common law arson marks the outer edge of the offense. Arson requires malice, a burning, of a dwelling, that another uses as a dwelling.1 When the defendant is the only person who lives in the structure, that last element is missing, and the charge fails even though the first three elements are satisfied. A defendant can intend the fire, char the wood of the building, and burn a place where people sleep, and still fall outside arson, because the only sleeper in the building is the defendant. This section treats that boundary as the flip side of the "dwelling of another" element covered above and asks what the common law did with conduct on the far side of it.
The boundary follows from what arson protects. The offense guards the security of habitation, meaning the safety of people who live in the structure, so a burning is arson when it exposes someone's home to destruction and its residents to danger. A sole occupant who burns the house in which only that occupant lives has endangered no one but the person who chose to set the fire, and no other household's security has been attacked. Ownership alone does not bring the burning within the offense, since the defendant's rights over the structure were never what the offense protected. Fire, though, does not respect property lines. When the burned house stands among other houses, the flames threaten neighbors who have done nothing, and the common law responded to that situation with a narrow misdemeanor, houseburning, which punishes the burner of his or her own dwelling only when other dwellings are put at risk. The misdemeanor is a lesser offense because the house burned is still not the habitation of another, and what the law punishes is the danger spread to the neighbors.
The motive is the same in both scenes, so the answer turns on a single variable, which is whether anyone other than the defendant lives in the structure. That result also exposes a gap. Malice at common law means intent, knowledge, or reckless disregard of an obvious risk of burning, and it does not depend on a wicked purpose, so a profit motive neither creates arson in the first scene nor adds anything to the second. A person who burned his or her own home to defraud an insurer therefore committed no arson, even though the conduct is plainly culpable. Later statutes closed that gap in two ways, by criminalizing insurance fraud as a separate offense and, in the Model Penal Code, by reaching the burning of one's own property for insurance proceeds, which the later sections of this chapter take up.
On an exam stem the tempting move is treating a profit motive as what turns a burning into arson. A stem may stress that the defendant was deep in debt, held a large policy, or wanted the money, and each detail is beside the point under the common law elements. The sound approach is to run the four elements and stop at the fourth, asking who lives in the structure. If only the defendant does, there is no arson, and the remaining questions are whether nearby dwellings were endangered, which raises houseburning, and whether the jurisdiction has a statute that reaches the conduct directly. The next two subsections take those two questions in turn.
Houseburning
The previous section left a gap: a sole occupant who maliciously burns his own home commits no arson, yet fire does not stay inside the house that was lit. The common law filled that gap with the misdemeanor of houseburning, which has three elements.3
The first two elements are arson's elements with one adjusted. Malice carries over unchanged: the defendant must have intended the structure to burn, known that it would, or acted with reckless disregard of an obvious risk that it would, and an accidental or merely negligent fire does not qualify. The burning requirement carries over as well, so the fire must do the damage. The second element is the mirror image of "dwelling of another." The structure is still a place where someone lives, but the only resident is the defendant, and that fact removes the charge from arson, because arson protects the habitation of someone other than the defendant.4 What remains is a burning that is not arson because no one else's home was attacked, so the law needs a separate reason to punish it.
The third element supplies that reason, and it explains the shape of the whole offense. An owner has a considerable right to destroy what belongs to him, and the law does not punish the loss of the owner's own house as such. A fire in a crowded setting is a different matter, because the neighbor asleep next door faces the same flames whoever lit them. The location element therefore carries the justification for the crime: it confines liability to the settings where the owner's fire becomes a danger to other households. The misdemeanor grade follows from the same structure, since the house burned is the defendant's own and the offense punishes the danger spread to others, which is less serious than burning another person's home.
The element can be met in two ways, and each has its own logic. The first is the town setting. By the text of the rule, a dwelling that stands within a city or town satisfies the element on that ground alone, because houses in a built-up area sit close together and a fire in one is likely to reach the rest.5 The second is actual proximity. A dwelling outside any town still qualifies if it is so close to other houses that the fire endangers them, so a country location does not shield an owner whose neighbor's farmhouse stands within reach of the flames. Where neither alternative is shown, the element fails, and with it the offense.
The three scenes keep the owner's intent, the burning, and the ownership constant, and the answer moves only with the location of the house relative to other homes. If the flames in the third scene actually consume the neighbor's house, the neighbor's house is a dwelling of another, and the analysis for that building returns to arson, with the question whether the owner's malice reaches that burning.6
On an exam stem the usual error is skipping the location element once the facts show that the defendant lived alone in the house and burned it on purpose. A malicious burning of one's own dwelling is not enough for houseburning, and the stem will often contain a sentence about where the house stood, such as a lot in a village or a farm miles from the road, that decides the question. The sound sequence is to rule out arson by asking who lives in the structure, and then to ask whether the house was in a town or close enough to others to endanger them. A yes to either alternative gives houseburning, and a no to both gives neither offense at common law.
Insurance Burning at Common Law
The last subsection left one situation open: the sole occupant whose fire endangers no neighbor. The commonest version is the owner who burns the home for the insurance money. At common law, a person who burned his or her own dwelling to obtain insurance proceeds fraudulently did not commit arson, and the law treated the conduct as noncriminal; modern statutes now separately criminalize that insurance fraud.9 The result follows from the element that arson cannot do without. The offense requires a dwelling that another uses as a dwelling, and an owner who is the only occupant has burned no one else's home.10 Malice at common law asks only whether the defendant intended the structure to burn, knew it would, or recklessly disregarded an obvious risk that it would, so the money motive neither supplies a missing element nor strengthens one already present.
The reason lies in what the offense was built to protect. Arson guarded the security of habitation or occupancy and had no concern with ownership, and early English law assumed that an owner could destroy his or her own property in any manner he or she chose.11 An insurance burning does injure someone, but the victim is the insurer, which pays a claim on a loss the insured arranged. That wrong is a fraud on a financial institution, and the habitation theory has no room for it, since no occupant was endangered and no one else's home was attacked. Two responses were open: stretch arson to cover the conduct, which would have detached the offense from its protective purpose and turned it into a hybrid of fire and fraud, or leave the conduct to separate legislation. The law took the second course, and legislatures wrote insurance fraud statutes aimed at the real wrong.12
Insurance law reaches a similar practical result from the civil side. An owner who intentionally burns the insured building cannot collect, because the loss is not fortuitous, while an owner whose building is burned by an arsonist with no connection to the owner can recover.13 The insurer therefore had a defense to payment even where no arson charge could be brought, and the civil rule and the criminal rule each follow the same line between a loss the owner caused and a loss the owner suffered.
The two poles of the common law rule differ in one variable, whose habitation was burned. A homeowner who lives alone and burns the home to collect the insurance proceeds, with no one else's habitation involved, commits no common law arson.14 Give the owner the same insurance motive but have the fire consume a house occupied by the owner's tenant, and the dwelling is that of another, so the burning is arson regardless of the motive.15 Co-ownership with a spouse does not move the first pole by itself, because title is not what the element measures; what matters is whether anyone other than the defendant makes a home in the structure.
The spreading fire shows why the owner's escape from arson is narrow. The insurance motive protects the owner as to the owner's own home and as to nothing else, because the first dwelling that belongs to someone else's habitation brings the four elements back into play.
On an exam stem the tempting mistake is importing the Model Penal Code's insurance provision into a common law problem. A stem may describe a defendant with a large policy and a plan to collect, and the instinct is to call it arson because the conduct is plainly culpable. Under the common law elements, the question is still who lives in the structure. If the defendant is the only occupant, the answer is no arson, and the stem is testing whether the examinee can separate the culpability of the fraud from the elements of the crime. Only if the stem gives a modern statute, or names the Model Penal Code, does the insurance motive itself become part of the analysis.
That is where the next section picks up. The Model Penal Code reverses the common law result: it makes it arson to start a fire or cause an explosion with the purpose of destroying or damaging any property, whether the actor's own or another's, in order to collect insurance for the loss.16 The common law track closes here with the rule that habitation, and not the defendant's motive, defines arson.