The main elements necessary to prove arson are evidence of a burning and evidence that a criminal act caused the fire. The accused must intend to burn a building or other structure. Absent a statutory description of the conduct required for arson, the conduct must be malicious, and not accidental. Malice, however, does not mean ill will. Intentional or outrageously reckless conduct is sufficient to constitute malice. Motive, on the other hand, is not an essential element of arson.
Unless a statute extends the crime to other property, only a house used as a residence, or buildings immediately surrounding it, can be the subject of arson. If a house is vacated, is closed up, or becomes unfit for human habitation, its burning will not constitute arson. A temporary absence from a dwelling will not negate its character as a residence.
Generally, the actual presence of a person within a dwelling at the moment it is burned is not necessary. It may, however, be required for a particular degree of the crime. The fact, and not the knowledge, of human occupancy is what is essential. If a dwelling is burned under the impression that it is uninhabited when people actually live in it, the crime is committed.
Absent a statute to the contrary, a person is innocent of arson if that individual burns his or her own property while living there. The common exception to this rule is the burning of one's own property with an intent to defraud or prejudice the property insurer. In addition, under statutes that punish the burning of a dwelling house without expressly requiring it to be the property of another, a person who burns his or her own property might be guilty of arson. An owner, for purposes of arson, is the person who possesses the house and has the care, control, and management of it. In those states that have maintained the common-law rule that the property burned must belong to another person, an owner who burns his or her house while it is in the possession of a lawful tenant is guilty of arson.