While you can be criminally charged for trespassing, you can also be sued civilly for trespassing under tort law. Most commonly, civil trespassing will refer to interference with another person’s land or personal property (also known as “chattel”).
If you are sued for trespass, you may have some defenses available to you. These defenses include consent, public necessity private necessity and/or privilege.
When is the Consent Defense Available?
One common defense that can be used if you were sued for trespass is that you were given consent by the owner of the land or property.
Consent can be given to you by both words and actions. For example, if someone tells you that you can enter their property, you can argue that you were given consent. Additionally, an example of an action that may give you consent is if someone waves you onto their land.
You may also be able to argue consent if the owner of the land or property did not take any action or remained silent when you entered their land or used their property. However, this is a harder defense to argue and prove.
Lastly, keep in mind that your consent argument will be determined to be invalid if it was induced by fraud or was given by someone who is incompetent, intoxicated or a minor.
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When is the Public Necessity Defense Available?
If you have interfered with someone else’s land or chattel because of a public necessity, you will have a defense to trespass. To invoke this defense, the situation that triggers your action must be:
- An immediate and imperative necessity; and
- An act that is done in good faith for the public good.
An example of this would be a firefighter entering another person’s land to help prevent a fire from spreading throughout the neighborhood.
The rationale is that when something threatens the whole community and the public interest is involved, you are able to take action to protect the public interest. However, understand that this defense is not available if the act becomes unreasonable under the circumstances.
When is the Private Necessity Defense Available?
If you have interfered with someone else’s land or chattel because of a private necessity, you will also have a defense to trespass. The privilege of private necessity is only allowed when your actions are necessary to protect:
- Any person from death or serious bodily harm; or
- Any land or chattel from destruction or injury.
Thus, the rationale behind this defense is that the preservation of life is more important than property rights. For example, if you are running away from someone who is trying to shoot you and enter another person’s land, you could argue private necessity.
When is the Privilege Defense Available?
Lastly, you may argue that you had privilege to trespass if you are attempting to recover land or chattel that is rightfully yours. Trespass is allowed in this situation if the reason you do not have your land or chattel was:
- The landowner's fault;
- The chattel owner's fault; or
- An act of god, such as a storm or flood.
Should I Contact a Lawyer if I am Sued for Trespass?
If you are sued for civil trespass, you should speak to a local real estate lawyer to determine if you have any of the above defenses available in your situation. A lawyer can help you formulate a strong defense and represent you in court.