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Defenses to Trespass

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Defenses for Trespassing

A party accused of trespassing on land or chattel (personal property, such as books, pencils, corn, etc.) may invoke any of a number of different defenses, which can include: 

  • Consent
  • Privileged invasion to reclaim chattel
  • Public necessity
  • Private necessity

If the alleged trespasser was given consent by the plaintiff to enter his land or use his chattel, then the trespass was legal.  Consent can be manifested by words or actions, or it may be manifested by silence or inaction where the reasonable person would speak if he objected to these actions.  The consent is invalid if: 

  • It was induced by fraud; or
  • The consenter was incompetent, intoxicated or a young child. 

Privileged Invasion to Reclaim Land or Chattel
Under certain circumstances trespass is allowed if the trespasser is trying to recover land or chattel that is rightfully his.  Trespass is allowed in this situation if deprivation of land or chattel was: 

  • The landowner's fault;
  • The chattel owner's fault; or
  • An act of god (storm, wind, flood, etc.).

Mistakes of law do not create any privilege to trespass to land or chattel.

Public Necessity
Public necessity can create a privileged invasion of another's land or chattel.  The rationale is that when peril threatens the whole community so that the public interest is involved, one has a complete defense to act to protect the public interest.  To invoke this privilege, it must be: 

  • An immediate and imperative necessity; and
  • An act that is done in good faith for the public good.

The privilege disappears when the act becomes unreasonable under the circumstances. 

Private Necessity
Private necessity can also create a privileged invasion of another's land or chattel.  This privilege supersedes the owner's privilege to exclude trespassers.  Any force used by the landowner to exclude the defendant is wrongful and can subject the landowner to liability for harm caused by denying entry.  The rationale is that the preservation of life is more important than property rights.  Exercise of private necessity is only allowed when necessary to protect: 

  • Any person from death or serious bodily harm; or
  • Any land or chattel from destruction or injury.

What Can You Do if I Am Sued for Trespassing?

If you are accused of trespassing you should speak to an experienced real estate lawyer immediately to learn more about your rights, your defenses, and the complicated legal system.  A property attorney can also represent you in court.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 03-06-2018 09:46 PM PST

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