Trespassing Laws

Trespassing is the legal term for entering another person's land without permission or the legal right to be there.

Depending on the circumstances and the law in place where the act happens, trespassing may be a:

1. Crime (such as a misdemeanor)
2. A civil wrong (called a tort) or
3. Both

For example, a trespasser who steals personal property from a homeowner may be guilty of burglary. Or, if a trespasser breaks something on the homeowner's real property, the homeowner may sue the trespasser under tort law. This would allow them to recover their actual damages in court. Curiously, though, trespassers sometimes file injury claims against property owners.

Trespassing Basics: Unauthorized Entry

As mentioned, trespassing can be a criminal or civil wrong. Police, park rangers, and other peace officers enforce criminal trespass laws. Law enforcement agencies can threaten jail time, and a criminal defense attorney may need to get involved. Under state law, property owners may file civil trespass claims. The property owner can assert a tort of trespass against those who enter their property without permission or right-of-way.

But there must be some intent for civil and criminal trespassing. Under common law, accidentally traversing someone else's property typically does not rise to trespassing. That's because there was no intent to trespass. There also may be cases where an "implied consent" exists, such as:

• A police or fire department motor vehicle needs to address an emergency
• When immediate action is needed to save a life
• The use of front walkways by mail carriers

Knowledge that a property is privately owned and off-limits may be implied. This may happen in many different ways, including:

1. Fences enclosing the parcel of land
2. "No trespassing" disclaimer signs
3. Verbal warnings from the property owner

Similarly, a property owner may establish express consent by granting permission either in writing or verbally.

Civil Liability for Trespasser Injuries

While property owners have no special duty to protect trespassers, they may be liable in some instances if trespassers get injured. Essentially, a landowner who knows (or ought to know) that trespassers frequent their property is liable for injuries caused by unsafe conditions if:

1. The owner either created or maintained the unsafe condition
2. The unsafe condition is likely to cause serious injury or death
3. The owner had reason to believe that trespassers would not be aware of the unsafe condition
4. The owner failed to exercise reasonable care to warn trespassers about the unsafe condition

A home may prominently display a "Beware of Dog" sign as a deterrent to would-be trespassers or burglars. This would be a fair warning to trespassers who may get injured by the dog.

The rules are different for children since the law under the Attractive Nuisance Doctrine assumes that children are largely naive to certain dangers. So, property owners are responsible for maintaining a property that does not pose a risk to children. That includes even those who enter the property without permission. Swimming pools are a common example, referred to as an "attractive nuisance" without a proper enclosure or deterrent.

Trespassers' Rights Under Adverse Possession Law

Under certain limited circumstances, trespassers or squatters may gain legal title to otherwise unused parcels of land or homes. Often referred to as "continuous trespassers' rights," adverse possession laws exist to encourage property use, care, and development. A person may apply for legal title if:

1. They live in or use and improve a piece of property openly
2. They pay property taxes
3. A certain period of time has elapsed under state law

Generally, a trespasser must meet the following four elements to qualify for a claim to the property:

1. Hostile claim. The trespasser must occupy the land, with or without knowledge that it is private property (such as relying on an incorrect deed), in a manner that infringes on the true owner's property rights.
2. Actual possession. The trespasser must physically inhabit the property and treat it as their own.
3. Open and notorious. A trespasser may not be evasive; the possession must be obvious.
4. Exclusive and continuous. The trespasser must have been in sole possession of the property for an unbroken period of time that satisfies the statutory period.

Trespassing is a complicated and multi-faceted area of the law. If you're facing trespassing charges, contact a criminal defense attorney. Contact a real estate attorney if you have a dispute over property rights or ownership.