Trespassing Legal Basics

Most people understand that entering someone’s property without permission is trespassing. But there are many different scenarios that can lead to confusion. For example, a private business may be open to the public, but the owner might ask someone to leave. Or you might need to cross your neighbor’s driveway to get to your own garage. 

Trespass laws define when a person can enter someone’s property without the owner’s consent. They also determine the land owner’s legal responsibilities and rights.

This article explains a few key issues related to trespassing and property laws. Whether you’re dealing with unwanted trespassers or a trespassing accusation, professional guidance can help you. Speak with a real estate attorney to get legal advice for your case. 

Definition of Trespassing on 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.

This liability also extends to having an attractive nuisance on your property, which is anything that is likely to tempt people — usually children — to trespass. Swimming pools are a common example of an attractive nuisance. If a child trespasses to swim in your pool and suffers an injury, you may be liable because you failed to adequately secure the pool area. 

What Can I Legally Do To Prevent Trespassing?

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 offer free use for others.

Trespassing signage is particularly important if you own land in areas where hunting and fishing may occur. Hunters can refer to these signs to understand where your private boundary begins.  

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 and Easements

An easement gives someone else a legal right to use property that they don’t own without permission. If someone holds an easement right to enter a property, they are not trespassing so long as they respect the limitations of the easement. 

For example, a typical utility easement may allow the electric company to maintain power lines on your property. An electrician could enter your property without your consent to inspect and repair the cables. Yet, the worker wouldn’t also have the right to swim in your pool or enter your home under such an easement. Their property rights are limited. If their use of your property becomes more invasive than the easement allows, they would be trespassing. 

Routine trespassing can also lead to the creation of an easement. The legal doctrine of adverse possession might apply. Adverse possession means that someone who continually trespasses without pushback from the owner could eventually gain the right to access the property.

The idea that violating a property owner’s rights leads to gaining property rights of your own might sound like circular logic. But in the case of adverse possession, a trespasser must meet several requirements before they can claim this prescriptive easement.

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.