Welcome to the Trespassing section of FindLaw's Real Estate Center. Trespassing is the legal term for the situation in which one person enters onto the land of another without permission or the legal right to be there. Depending on the circumstances and the law in place where the act occurs, trespassing may be considered a crime, a civil wrong (called a "tort"), or both. For example, a trespasser who steals something from the homeowner's property may be guilty of the crime of burglary. Alternatively, if a trespasser breaks something on the homeowner's property, the homeowner may sue the trespasser under tort law. Curiously, though, even trespassers sometimes may file injury claims against property owners.
As mentioned above, trespassing can relate to either a criminal or civil wrong. While police, park rangers, and other peace officers enforce criminal trespass law, property owners may file civil trespass claims against individuals who enter their property without permission or right-of-way. But for both civil and criminal trespassing, some element of intent must be established. Accidentally traversing someone else's property typically does not rise to the level of trespassing, since there was no intent to trespass. There also may be instances where an "implied consent" exists, such as when immediate action is needed to save a life or the use of front walkways by mail carriers.
Knowledge that a piece of property is privately owned and therefore off-limits may be implied in a number of different ways, including fences enclosing the parcel of land; "no trespassing" signs; or verbal warnings from the property owner. Similarly, a property owner may establish express consent by granting permission either in writing or verbally.
Liability for Trespasser Injuries
While property owners have no special duty to protect trespassers, they may be held liable in some instances if trespassers are injured. Essentially, a landowner who knows (or ought to know) that trespassers frequent his or her property is liable injuries caused by unsafe conditions if:
- The owner either created or maintained the unsafe condition;
- The unsafe condition is likely to cause serious injury or death;
- The owner had reason to believe that trespassers would not be aware of the unsafe condition; and
- The owner failed to exercise reasonable care to warn trespassers about the unsafe condition
So while a home may have a "Beware of Dog" sign prominently displayed as a deterrent to would-be trespassers or burglars, it would be considered a fair warning to trespassers who may ultimately be injured by the dog. The rules are different for children, however, since the law assumes that children are largely naive to certain dangers. Therefore, property owners are responsible for maintaining a property that does not pose a risk to children, even those who enter the property without permission. Swimming pools are a common example, referred to as an "attractive nuisance" in the absence of a proper enclosure or deterrent.
Trespassers' Rights Under Adverse Possession Law
Trespassers may actually gain legal title to otherwise unused parcels of land under certain, limited circumstances. Often referred to as "continuous trespassers' rights," adverse possession laws are meant to encourage the use, care, and development of property. So if someone uses and improves a piece of property openly, paying property taxes, that individual may apply for legal title after a certain period of time has elapsed. Generally, a trespasser must satisfy the following four elements in order to qualify for a claim to the property:
- Hostile Claim - Trespasser must occupy the land, with or without knowledge that it is private property (such as relying on an incorrect deed)
- Actual Possession - Trespasser must physically inhabit the property and treat it as his or her own
- Open and Notorious - Trespasser may not be evasive; the possession must be obvious
- Exclusive and Continuous - Trespasser must have been in sole possession of the property for an unbroken period of time
Trespassing is a complicated and multi-faceted area of the law. Click on a link below to learn more.
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