Trespassing Laws

Trespassing goes beyond a simple nuisance. It can affect a land owner’s enjoyment of their property and right to privacy.

That’s why there are laws to protect owners’ rights. But there are also laws that protect trespassers. 

This article will discuss criminal and civil trespassing. It also explains how trespassing can affect property owners’ rights and liabilities. Depending on the type of case you have, you may want to seek more help from a criminal defense attorney or a real estate attorney.

Is Trespassing a Civil or Criminal Violation?

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

• Crime (such as a misdemeanor)
• A civil wrong (called a tort)
• Both a civil wrong and a property crime

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. There are circumstances in which the property owner may also be liable for a civil wrong.

Enforcing Property Rights Against 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.

What About Accidental Trespassing?

Under common law, accidentally entering someone else’s property typically does not rise to trespassing. That’s because there was no intent to trespass. There must be some intent for civil and criminal trespassing. 

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

The fact that a property is privately owned and off-limits may also be implied. Certain features can warn people where the boundaries of private land exist. 

This implication may happen in many different ways, including:

• Fences enclosing the parcel of land
• “No trespassing” disclaimer signs
• Verbal warnings from the property owner

With these methods, a reasonable person would know about the private nature of the property so they can avoid trespassing. But if they proceed despite knowing the property is private, they are trespassing. The exception is when an easement applies.

Similarly, a property owner may establish express consent by granting permission either in writing or verbally. An example is when a neighbor asks the owner if they can walk through their yard to access a trail, and the owner says yes. 

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, the landowner must know (or ought to know) that trespassers frequent their property and that unsafe conditions affect their property.

The property owner may be liable for injuries if all the following elements apply:

• 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.
• The owner failed to exercise reasonable care to warn trespassers about the unsafe condition.

Warnings can be relevant for the owner’s defense in these cases. 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. The law under the attractive nuisance doctrine assumes that children are largely naive to certain dangers. 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 of 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:

• They live in or use and improve a piece of property openly.
• They pay property taxes.
• 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:

• 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.
• Actual possession: The trespasser must physically inhabit the property and treat it as their own.
• Open and notorious: A trespasser may not be evasive; the possession must be obvious.
• 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.

State and Federal Trespassing Laws

Trespassing, like most other issues of property law and criminal law, is primarily a matter of state law. 

State trespassing laws cover a variety of details, such as:

• Entering private property while hunting or fishing
• Animal trespassing, including pets and livestock
• When and how property owners can defend their land against trespassers
• When a trespasser can pursue adverse possession rights
• Classification of trespassing crimes
• Jail time, fines, and other penalties for criminal trespassing

Trespassing laws vary between states. You can compare Washington’s criminal trespassing laws with Florida’s criminal trespassing laws to see an example of these differences.

There are also federal trespassing laws. These laws apply to federal property, such as federal government offices, federal courthouses, military bases, and national lands. In a criminal case, the trespasser may face federal charges.

Get Legal Help for a Trespassing Case

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