---
title: "Arson"
type: Legal Rule
source: https://casebriefly.com/legal-rules/arson
---

# Arson

Arson at common law is the malicious burning of the dwelling house of another. Modern statutes expand it to include any structure or property and do not require the building to belong to another person.

## Definition

Arson at common law was defined as the malicious burning of the dwelling house of another. Each element was strictly construed. "Malicious" required intentional or reckless conduct, not mere negligence. "Burning" required actual charring of the structure's fiber, not mere smoke damage, scorching, or discoloration. "Dwelling house" meant a structure used for habitation, including outbuildings within the curtilage, and "of another" meant the defendant could not commit arson of their own dwelling.

Modern statutes have significantly expanded the scope of arson in several ways. Most jurisdictions no longer limit arson to dwellings, extending it to any building, structure, vehicle, or real property. Many states have eliminated the requirement that the property belong to another, criminalizing the burning of one's own property, particularly when done for insurance fraud or when the burning endangers others. The burning requirement has also been relaxed in many jurisdictions to include any damage by fire or explosion, not just charring of the structure.

Modern arson statutes typically divide the crime into degrees based on the danger posed. First-degree or aggravated arson involves burning an occupied structure or dwelling, reflecting the heightened risk to human life. Second-degree arson may involve burning an unoccupied building. Third-degree or simple arson may cover burning personal property or one's own property. Arson is classified as a crime against habitation at common law (like burglary), which explains why it historically required a dwelling. It is frequently listed as a predicate felony for the felony murder rule, given the inherent danger fire poses to human life.

## Elements

- Common law: malicious (intentional or reckless) conduct
- Burning of a structure (common law required charring of the fiber of the building)
- Common law: the structure must be a dwelling house of another person
- Modern: any structure, vehicle, or property may suffice
- Modern: burning one's own property may qualify if done for fraud or endangering others

## Key Case

Commonwealth v. Nee, 458 Mass. 174 (2010)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Commonwealth v. Nee | 458 Mass. 174 (2010) | Addressed the elements of arson under modern statutes and the distinction between burning and mere smoke damage |
| People v. Atkinson | 25 Cal. App. 4th 1671 (1994) | Discussed the willful and malicious burning requirement and the sufficiency of circumstantial evidence of intent |
| State v. Pisano | 107 Conn. App. 505 (2008) | Addressed arson of one's own property and the insurance fraud dimension of modern arson statutes |

## Exam Tips

- On the exam, specify whether you are applying common law or modern statutory arson, as the elements differ significantly
- At common law, charring of the building's fiber was required; mere blackening or smoke damage was insufficient
- Remember that common law arson required the dwelling of another; burning your own home was not arson at common law
- Note arson as a predicate felony for felony murder and as a basis for first-degree murder in many jurisdictions

## Common Mistakes

- Assuming any fire damage constitutes arson at common law; charring of the structural fiber was required
- Forgetting that at common law, a person could not commit arson of their own dwelling; this was changed by modern statutes
- Overlooking arson's role as a predicate felony for felony murder, which is a frequent exam combination

## Mnemonic Or Memory Aid

"MAD" -- Malicious Act of Destruction by fire: arson requires malice and actual burning, not accidental fire

## Related Rules

- felony-murder-rule
- robbery-vs-larceny-vs-burglary
- homicide-degrees-of-murder

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Source: [Arson — CaseBriefly](https://casebriefly.com/legal-rules/arson)