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 a civil law tort known as trespass to land.
Trespass to land occurs when a person intentionally enters someone else’s property without permission. The only intent required for this claim, is the intent to enter the property. So even if your neighbors accidently 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 enter the land that is the subject of the trespass. It’s not required that the defendant intended to do so wrongfully. So 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, such as an owner or tenant.
- Without Owner's Consent: Entry onto the property must be unauthorized, either expressly or implied. For example, the police and postal carriers has implied consent to be on most residential property, so a trespass cause of action would fail in such cases.
- Damages: In most states, to establish a viable claim some damage must be suffered. The defendant didn’t need to intend to cause the harm, but the defendant’s conduct must be a substantial factor in causing 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 may be able to recover for the following damage:
- Loss of market value
- Costs of restoration
- Loss of use of the property
- Physical injury to the person or to the land
- Emotional distress
- Discomfort and annoyance
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. However, when the cost to repair or restore exceeds the decrease in market value to such a degree that repairs are no longer economically feasible, then damages are awarded only for the loss of market value.
Getting an Injunction
Maybe you don’t need compensation for damages. You just want the trespass to stop. 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 the issuance of an injunction, the court will order the trespass to stop. If the offending conduct continues, the police will enforce the injunction, and you can file for contempt of court.
Liability for Injury to Trespassers
Generally, a property owner or a tenant is not responsible for the injuries of a trespasser, but this does not mean the property owner owes no duty to a trespasser. The following are situations where a trespasser can be liable for damages suffered by someone not rightfully on your property:
When a landowner or tenant discovers or anticipates trespassers, they must 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.
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.
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. Trespass to land issues are often very 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.
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