Ejecting Trespassers

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Who Is a Trespasser?

A trespasser is anyone who goes onto another's property without permission or authority to be there.  Trespassing is a crime in most jurisdictions but also may establish civil liability which entitles the landowner to damages.  

This applies to persons who have overstayed the amount of time the property owner has invited them over or to persons who have been ordered off the property by the owner, even though the person was originally invited by the property owner.

Is It Trespassing If I Didn’t Intend To Be There?

No. Trespassing requires intent. Entering a property willingly is trespassing. Entering a property because of an accident is not trespassing.

Do I Have To Be In the Property To Be Trespassing?

No. Trespassing does not require that one’s body be on the property to be considered trespassing. Throwing rocks or other physical objects will satisfy the requirements for trespassing, as the trespasser is still performing action against the owner’s property without permission. Non physical items such as smoke or sound, however, are considered a nuisance instead of a trespass.

What Action Is Allowed to Eject Trespassers?

If a trespasser is discovered, the proper action is to ask the trespasser to leave.  If that fails, the landowner should call the police.  The landowner is not allowed to use "self help" methods to eject the trespasser.  This means that a landowner cannot forcefully remove a trespasser from their land.  A landowner also may not detain a trespasser while waiting for police to arrive.  

What Can Be Done to Prevent Trespassing?

The most obvious method to prevent trespassing is to place signs marking the land as private property or erecting a fence around the property.  Landowners or security guards may not set traps on the property or shoot at trespassers.

What Happens If the Trespasser Has Been On The Property For a Long Time?

If the trespasser has been on the property for a significant amount of time, the trespasser may be treated by the law as a non-rent paying tenant. The exact amount of time will differ from state to state. If that occurs, a simple trespass order will no longer be considered sufficient to remove the trespasser, as the trespasser will instead be considered a tenant.

The trespasser-tenant can be ejected from the property through the normal eviction process used on tenants. This means that a notice to quit the property must be given to the tenant and if the person fails to leave the property within the legal timeframe, an eviction order will be issued by a court for the police to execute. 

Can a Trespasser Sue the Property Owner If the Trespasser is Injured on the Property?

As absurd as it sounds, trespassers may, in limited instances, sue the property owner if they are injured while on the property. This is possible because the general public has the right to sue property owners if they are injured while on the property.  Although trespassers are uninvited, they are still members of the general public.

However, property owners only owe trespassers the same responsibility they owe the general public. In most states, this means the duty to warn about dangers hidden to the public, yet are known to the property owner. There ought to be signs in obvious places warning about dangerous animals, explosives, or other dangers. This is usually sufficient in defeating any claims made by trespassers who suffer injuries while on the property.

Do I Need a Lawyer?

If you have been accused of trespassing, had problems with trespassers on your land, or have been injured during an illegal ejection, you should see an experienced property lawyer or personal injury lawyer immediately to learn more about your rights, defenses, and the law in your area.  A lawyer can also represent you in court.

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Last Modified: 11-13-2013 11:15 AM PST

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