In legal terms, the definition of real property is land, and anything:

  • Growing on;
  • Affixed to; or
  • Built upon land.

This definition includes man-made buildings and structures, as well as crops. Real property can be best characterized as property that does not move, or property that is attached to the land. This opposes personal property, which can be moved or physically transferred.

Real estate and real property are terms that can be used interchangeably. Another term that may be used for real property would be premises. Real property may include the land, but also anything that is permanently located within or under the land. Under this definition, the following may be included:

  • Oil;
  • Gasses; and
  • Minerals found under the land.

Generally speaking, the term private property refers to real property that is owned by an individual, or a group of individuals. Conversely, public property refers to real property that is owned by the state in which the property is located.

There are many different laws governing the rights of private property owners in relation to public property. An example of this would be how if the state wanted to convert private property into public property, the state would first need to provide notice as well as compensation to all affected parties.

What Is Intentional Interference With Property Rights?

When someone interferes with another person’s property rights, there may be serious criminal or civil penalties as a result. According to civil law, the intentional interference with property rights is a specific area of tort law. Civil Tort Law refers to a very broad area of the law addressing wrongdoing by one individual against another. Specifically defined, a tort is a civil wrong other than a breach of contract which causes harm or loss. The person or entity that commits the wrongdoing may be held liable for any losses or damage that they cause.

Tort law is intended to compensate victims, as well as attempt to deter or discourage further wrongdoing. Wrongdoing includes things that cause:

  • Physical or economic injury;
  • Pain and suffering;
  • Violation of privacy, property, or constitutional rights; and/or
  • Damage a person’s reputation.

It also provides a way for the injured to recover monetary damages for foreseeable harm that was caused by, or was the direct result of, the other party’s breach of their duty of care.

The most common property torts are:

  • Trespass to Land: Property owners have the right to use that property in any legal manner that they wish. This includes keeping other individuals from entering their property. Trespassing, or trespass to land, occurs when someone enters onto another person’s property without their permission, or without the legal right to be on the property. A plaintiff can sue for trespass to land, even if the trespasser did not do any harm while they were trespassing. According to tort law, the trespasser may have committed a trespass even if they thought that the land was theirs, or that it was lawful to enter;
  • Trespass to Chattel: The term “chattel” refers to any personal property, but it does not apply to real property, or any interest in land. Rather, trespass to chattel refers to the intentional and wrongful interference of another’s personal property without their permission to do so. In order to bring a trespass to chattel claim, the plaintiff would need to show that there was actual damage or dispossession resulting from the defendant’s trespass; and
  • Conversion: Conversion refers to the serious intentional interference with the right of possession of personal property. The difference between trespass to chattel and conversion comes down to the degree of possession that the trespasser has assumed. What this means is that if the trespasser merely challenged the right of possession, that would constitute a trespass to chattel. However, if the trespasser created a forced sale of the property to themselves, this would constitute a conversion.

Are There Any Defenses To The Intentional Interference With Another’s Property Rights?

In terms of defenses to property torts, the most common defense would be consent. An example of this would be if the plaintiff gave their express or implied consent to the alleged trespasser for them to enter the property or possess the chattel. The alleged trespasser has not committed a trespass; however, the consent must have been effective in order for this defense to be sufficient.

The following three elements are necessary when proving effective consent:

  • Capacity to Consent: The person giving their consent must have had the mental capacity to consent. Mentally incompetent people, intoxicated people, and minors generally are not considered to have the capacity to consent;
  • No Fraud or False Pretenses: Simply put, the obtained consent must not have been coerced or gained under false or mistaken pretenses. The property owner must have consented on their own volition; and
  • Scope of Consent: The alleged trespasser must not exceed the scope of consent provided. An example of this would be if the property’s owner provided consent for the alleged trespasser to enter into specific parts of the property, but others.

Another common defense to intentional interference with property rights is necessity. Necessity occurs when the alleged trespasser invades the plaintiff’s property for emergency reasons. There are two types of necessity:

  • Public Necessity: Public necessity refers to when the trespassing action was necessary in order to protect the community. The public necessity defense is a complete bar to recovery, meaning that the plaintiff will not be able to receive any damages whatsoever; and
  • Private Necessity: Private necessity refers to when the act of trespass was necessary in order to preserve the trespasser’s own interest. This is a limited defense, meaning that the trespasser is not responsible for any nominal or punitive damages. However, they would be legally responsible for any property damage caused by their actions. Additionally, the plaintiff cannot force the alleged trespasser to exit the property until the emergency has been resolved.

Are There Any Remedies For Property Torts?

There are three basic types of remedies in tort law:

  • Legal Remedies: Legal remedies are also known as damages, and are monetary payments. These payments are made by the defendant to the plaintiff, and are intended to compensate the victim for their injuries, losses, and pain and suffering. Punitive damages may be included in especially serious tort claims;
  • Restitutionary Remedies: These remedies are also meant to restore the plaintiff to a position of “wholeness;” meaning, as close as possible to their state prior to the tort. These can include damages that will be further discussed below; and
  • Equitable Remedies: Equitable remedies are available when monetary damages will not suffice in restoring the victim to wholeness. Victims of physical harm or harassment may obtain a restraining order in order to prevent the defendant from making contact with or coming near to the plaintiff. A temporary or permanent Injunction may either prohibit unlawful activity by the defendant, or may order them to take specific affirmative steps. Injunctions are especially common in trespassing and nuisance tort cases.

As previously mentioned, there are different types of restitutionary remedies. These can be further broken down as:

  • Restitutionary Damages: Similar to damages, they are calculated based on the tortfeasor’s gain as opposed to the plaintiff’s losses;
  • Replevin: Replevin is a legal remedy which allows the victim to recover personal property that they may have lost as a result of the tort. An example of this would be recovering property that was stolen. As a tort remedy, replevin can be coupled with legal damages in specific cases;
  • Ejectment: This involves the court ejecting a person who is wrongfully staying on real property owned by the plaintiff. This is a common remedy in cases involving continuing trespass; and
  • Property Lien: If the defendant cannot afford to pay ordered damages, a judge may place a lien on their own real property. They would then sell the property, and forward the proceeds of the sale to the tort victim.

Do I Need an Attorney For Intentional Interference With Property Rights?

If you own property and are experiencing intentional interference with property rights, you should consult with a local and experienced property law lawyer. Because state laws can vary widely regarding property rights and trespassing, it is important to work with an area attorney who will best understand your state’s specific laws.

An experienced attorney can help you prepare and file a lawsuit, and will also be able to represent you in court, as needed, while helping you work towards obtaining a tort remedy.