Trespass to Land Defenses

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What Is Trespass to Land?

Trespass to land is the intentional and wrongful invasion of person’s land without that person's consent. An individual does not need to harm the land in any way for the plaintiff to sue for trespass. A defendant’s mistaken belief that they were the owner of the land or otherwise were not trespassing is not a defense in a lawsuit. 

What Are the Defenses to a Trespass to Land?

The most common defense to trespass to land is consent. The consent defense involves the plaintiff giving the defendant permission to enter the land. This defense negates the last element of element of trespass to land: without permission. Other defenses include:

  1. Public Necessity: The defendant intentionally entered the land of another to protect the community. For example, the defendant was driving when a group of children ran onto the road. The defendant drove onto the plaintiff’s property and ruined a garden. A defendant would not be responsible because the action was done for the greater good. Public necessity is a complete defense and bars a plaintiff from recovering.
  2. Private Necessity: The defendant intentionally entered another person’s land in order to protect their own interests. For instance, the defendant lost control of their car while driving on their own driveway. Instead of hitting their home, the defendant swerves onto their neighbor’s front lawn. Private necessity is an incomplete defense to trespass to land. As an incomplete defense, the defendant is still responsible for nominal damages.
  3. Privileged Invasion to Reclaim Personal Property: A defendant has the right enter the plaintiff’s land to recover their personal property. This defense is only allowed if the personal property was on the plaintiff’s property due to:

Do I Need to Talk to an Attorney about Trespass to Land Defenses?

Which defense you can use depends on the facts and circumstances involved. Contact a personal injury attorney to determine which defense to use in your answer.

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Last Modified: 07-27-2015 05:58 PM PDT

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