Trespass to Land

Does your neighbor keep hitting golf balls into your yard? Are kids constantly cutting through your property to get to the park? In most states, these actions represent an intentional tort known as trespass to land.

A tort is a wrongful civil action that can lead to harm, such as personal injury or personal property damage. Tort law has developed in part from common law, which is the body of rules created by judges over time. Separately, states have penal codes that allow prosecutors to bring government charges for criminal trespass. This article only focuses on the civil (private) tort claim for trespass.

The tort of trespass to land occurs when a person intentionally enters another's property without permission. The only intent required for this claim is the intent to enter the property. So even if your neighbors accidentally cross from their property into your lot, they can be liable for trespass. A trespass can also occur if someone causes a physical item, like a golf ball, to enter your property. Substantial injury is not required.

Proving Trespass to Land Claim

In order to prove that a defendant is liable for trespass to land, you'll typically have to show that four distinct actions occurred:

• Entry: The defendant must intend to enter the land that is the subject of the trespass. It's not required that the defendant intended to do so wrongfully. Thus, entering land by mistake can be a trespass in some states. Causing an object or thing to enter someone's property can also be considered trespass.
• Property of another: A trespass claim must be brought by a person with a legal interest in the property. It may be an owner or a third person such as a tenant.
• Without owner's consent: Entry onto the property must be unauthorized, either expressly or implicitly. For example, an “Entry Forbidden" sign expressly prohibits entrance. In the case of a “Private Property" sign, it is implied that a reasonable person would not enter the private property of a homeowner. They would have no such legal right. On the other hand, police and postal carriers have implied consent to be on most residential property, so a trespass cause of action (claim) would fail in such cases. Similarly, an owner of an easement may have a legal right of way to enter a property.
• Damages: In most states, to establish a viable claim, some damage must be suffered. This could be anything from the plaintiff's injuries to damage to their land. The defendant doesn't need to intend to cause the harm, but the defendant's actions must be a substantial factor in the causation of the harm suffered.

The physical act of intrusion onto land, even without significant damages or harm, is typically enough to support a trespass claim. In some states, such as California, annoyance and discomfort are enough to establish trespass to land.

What Damages Are Available?

A property owner or tenant has a right to compensation for the injury caused by the trespass. Depending on the nature of the trespass, you as the injured party may be able to recover for the following damages:

• Loss of market value
• Costs of restoration
• Loss of use of the property
• Physical injury to the person or to the land
• Damage to your personal property (see also trespass to chattels)
• Emotional distress (see also intentional infliction of emotional distress)
• Discomfort and annoyance (see also invasion of privacy)

When permanent injury to real property occurs, the general measure of damages is the loss of fair market value. In cases of temporary injury, the cost to repair or restore is the common basis for an award. But when the cost to repair or restore exceeds the decrease in market value to such a degree that repairs are no longer economically feasible, damages are awarded only for the loss of market value.

In cases where a defendant's actions are particularly egregious, punitive damages may also be available. These are damages intended to punish the defendant in excess of the financial harm suffered by the plaintiff. A court is more likely to award punitive damages when a plaintiff can show that a defendant knew harm could result from their trespass.

Getting an Injunction

Maybe you don't need compensation for damages. You just want the trespass to stop. An injunction is an order by a court instructing someone to stop doing something.

An injunction is often the best way to stop repeated trespassing. Many state courts have forms to help you draft your request. Talk to the clerk of the court or an attorney to understand your filing requirements. After an injunction is issued, the court will order the trespass to stop. If the offending conduct continues, you can file for contempt of court.

Liability for Injury to Trespassers

Generally, a property owner or a tenant is not responsible for a trespasser's injuries. But this does not mean the property owner owes no duty of care to a trespasser. The following sections describe situations in which a trespasser can be liable for damages suffered by someone not rightfully on your property. When dangerous conditions exist on a property, the owner may have premises liability under personal injury law.

Discovered or Known Trespassers

When a landowner or tenant discovers or anticipates trespassers, they may owe a duty of care to them. The owner must take ordinary care to warn or make safe concealed, unsafe, artificial conditions involving risk of death or serious bodily harm. You don't need to see the people who trespass to know of their presence. A path worn in the earth or trash left behind in a building is enough to make trespassers discovered.

You must also guard against attractive nuisances that may be inviting to children. The law places a standard of care on owners to prevent harm to children who might be attracted to something interesting on their property, such as trampolines or swimming pools. Owners must take reasonable care to prevent harm to curious children who might trespass on their property.

Willful and Wanton

In most states, a landowner or tenant can't perform acts that they know will harm a trespasser. For example, you can't leave traps to catch or deter trespassers, even if they are harming your property. Spikes or arrows that go off could end up killing firefighters who might need to access your property in an emergency. If your booby traps end up killing a so-called trespasser, their family may rightfully bring a wrongful death claim against you.

Have Additional Questions About Trespass to Land? Ask a Lawyer

You have a right to the use and enjoyment of your property, but it only takes one trespasser to turn your life upside down. When it comes to personal injury cases, trespass to land issues are often complicated and very annoying. If you're dealing with a trespass to land issue, consult with a local personal injury attorney today to ensure your property rights are being protected.