Defenses to Trespass

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 What Is Trespassing?

The owner of property has the right to use that property in any legal way they want to, including preventing other individuals from entering it. Trespass to land, also called trespassing, occurs when one individual enters another individual’s land without permission or without a legal right to be on the property.

Trespassing can be a civil tort, a crime, or both, depending on the location where the trespass occurs and the laws of the state.

Trespassing may also arise if an individual enters onto another individual’s property without their knowledge and remains after they are asked to leave. For example, if an individual trespasses onto another individual’s land and steals some of their personal property, they may be charged with criminal trespass.

If, on the other hand, the trespasser causes damage to the property, the homeowner can sue them under civil tort law. There are other examples of trespassing that may also arise if an individual is a guest of the property owner who becomes a trespasser when they are asked to leave the property.

Criminal trespass laws may be enforced by:

  • Police officers;
  • Sheriff’s deputies;
  • Park rangers.

How Does One Prove Trespass to Land?

Trespass to land is a common law tort that occurs when an individual or an object that an individual is controlling negligently or intentionally enters onto another individual’s property without the legal right to or the consent of the owner. The elements of the tort of trespass to land are as follows:

  • Actual interference with the owner’s right of exclusive possession;
    • This is known as the entry element;
  • Negligently or intentionally entering the land of another.

The definition of criminal trespass may vary by state. In general, in order to prove that a defendant is liable for trespass to land, a plaintiff is required to show:

  • The defendant entered onto the land;
  • The land belonged to another individual;
  • The defendant did not have the owner’s consent to enter;
  • Damages.

It has to be proven that the defendant entered onto the land. The defendant may have entered negligently or intentionally.

In some states, even if a defendant entered onto a property by mistake, it is still considered trespassing. In order for an action to be considered a trespass, the property must have belonged to another individual.

It has to be proven that the defendant did not have consent to enter onto the land, neither implied nor expressed. In other words, the defendant’s entry onto the land had to have been unauthorized.

It is important to note that a mail carrier has implied consent to enter the land of another individual to perform their job duties. In certain states, it has to be shown that a defendant caused the plaintiff damages.

It is not a requirement that the trespasser intended to cause harm. Instead, the plaintiff must show that the actions of the defendant were a substantial factor in bringing about the harm that the plaintiff suffered.

It is important to note that simply entering onto the land of another individual can be enough for a plaintiff to bring a valid trespassing claim in numerous states. This may apply even in cases where a defendant does not cause any damages to the owner or their property.

Common trespass to land examples may include, but are not limited to:

  • Hunting on property where the hunter does not have permission;
  • A construction company throwing debris onto neighboring property;
  • An individual remaining in a location after they were asked to leave; and
  • Being in a location that closes at dark after hours, for example, a park or graveyard.

What Are Some Defenses to Civil Trespassing?

Although an individual can be criminally charged for trespassing, they can also be sued civilly for trespassing under tort law. Typically, civil trespassing refers to interference with another individual’s land or personal property.

This differs from trespass to chattel, which refers to the intentional and wrongful interference with the personal property of another individual without their permission. Chattel is personal property, either tangible or intangible.

Chattel does not apply to real property or an interest in land. If an individual is sued for trespass, they may have some defenses available to them, including:

  • Consent;
  • Public necessity;
  • Private necessity;
  • Privilege.

When Is the Consent Defense Available?

One defense that is commonly used when an individual is sued for trespass is that the owner of the property or land gave them consent. Consent may be provided by actions, words, or both.

For example, if an individual told another individual they could enter their property, the individual who entered could argue that they were given consent. An example of an action that may indicate consent is when an individual waves another individual onto their land.

An individual may also be able to argue they had consent if the owner of the property or land did not take any actions or remained silent when they entered or used the property. However, this is a more difficult defense to prove.

An individual needs to remember that their consent argument can be deemed invalid if it was induced by fraud or was given by an individual who was incompetent, intoxicated, or a minor.

When Is the Public Necessity Defense Available?

If an individual has interfered with another individual’s land or chattel based on a public necessity, they may have a defense to trespass. To use this defense, the situation that triggered the action must be:

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

One example of this would be when a firefighter entered another individual’s land to help prevent a fire from spreading throughout the neighborhood. The rationale behind this is that when there is something that threatens the whole community, and a public interest is involved, an individual can take action to protect the public interest.

It is important to note, however, that this defense is not available if an individual’s actions are unreasonable under the circumstances.

When Is the Private Necessity Defense Available?

If an individual has interfered with another individual’s land or chattel due to a private necessity, they may also have a defense to trespass. The privilege of private necessity is only permitted when an individual’s actions are necessary to protect:

  • Any individual from death or serious bodily harm;
  • Any chattel or land from destruction or damage.

The rationale behind this defense is that preserving life is more important than property rights. For example, if an individual is running away from another individual who is trying to shoot them and they enter another individual’s land, they can argue the defense of private necessity.

When Is the Privilege Defense Available?

One of the other defenses to trespass that an individual may argue is if they are attempting to recover land or chattel that is rightfully theirs. Trespass is permitted in this situation if the reason an individual does not have their land or their chattel is:

  • The landowner’s fault;
  • The chattel owner’s fault;
  • An act of god, such as a storm or flood.

Another possible defense is that the individual was induced by fraud to trespass because a third party indicated that they owned property or personal property that they actually did not.

Should I Contact a Lawyer if I Am Sued for Trespass?

If you have been sued for civil trespass, it is essential to consult with a local property lawyer in order to determine if you can present any of the defenses discussed above. Your lawyer can assist you with formulating a strong defense as well as represent you in court.

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