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Trespassing Basics

Trespassing Basics

Trespassing is a legal term that can refer to various offenses against a person or property. Trespassing, as it relates to real estate law, means entering real property without the consent of the landowner. There are both criminal and civil trespass laws. Police, sheriffs, or park rangers enforce criminal trespass laws. Civil trespass allows private landowners to enforce their property rights by proving civil liability against trespassers.

Civil trespass requires that the property owner initiate a private enforcement action for trespass to land in court. The landowner can enforce their legal rights through tort law, or law that addresses wrongful civil acts. Suing for the tort of trespass allows them to collect any damages for which the trespasser may be responsible (regardless of whether a crime has been committed).

Intent and Knowledge Requirements

Traditionally under common law, for criminal or civil trespass, some level of intent is required. The trespasser must not simply accidentally cross another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign is posted.

A trespasser would probably not be prosecuted if:

  • The land was open
  • The trespasser's conduct did not substantially interfere with the owner's use of the property
  • The trespasser left immediately on request

On the other hand, suppose a trespasser takes exclusive possession of property they know belongs to another. A trespasser who steals personal property after taking wrongful possession of the property may be liable for actual damages and misdemeanor charges.

Express Consent

The landowner may indicate verbally or in writing the grant of permission to enter the land. Make sure you have a start date and end date. In most states, a landowner may give permission to enter their land for a limited time or purpose. However, the license is revocable at any time by the landowner.

Implied Consent

The existence of consent may be implied from the landowner's conduct, from custom, or from the circumstances. Consent may be implied if the landowner was unavailable to give consent and immediate action is necessary to save a life or prevent a serious injury.

Homeowner Liability: What if a Trespasser Gets Hurt?

As bizarre as this may sound, there are some limited protections for trespassers if they get injured while in the act, so to speak. Homeowners can sometimes be liable to trespassers if they willfully injured the person or knew or should have known about the presence of frequent trespassers and kept an unsafe condition.

What does all this mean? Well, let's say you, as a homeowner, set up a booby trap for a trespasser with a trip wire. If a trespasser trips on the hidden wire and suffers injury, the homeowner may be liable for injuries.

What are some things you can legally do? If you are concerned about trespassers coming onto your land, start with a "Private Property" or "No Trespassing" sign in a visible place. Not only does it put the trespassers on notice, but it also conveys your intent to keep your land to yourself and not as a make-shift easement for others.

You may also consider installing video cameras or trail cameras in the traveled area. The presence of the camera itself can be a deterrent to some. Be sure you are up-to-date on your state's laws regarding videotaping or filming before installing a camera. You can do this by speaking with a local attorney.

Trespassing Basics: Additional Resources

Have Questions About Trespassing? Talk to an Attorney

If you think someone is entering your property unlawfully, it will help to get an understanding of trespassing law and the various exceptions. Get in touch with a skilled real estate attorney near you to learn how the law applies to your particular situation. They can provide you with legal advice for different types of trespass claims.

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