Physical Invasion of a Neighbor’s Property

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 What is Physical Invasion of a Neighbor's Property?

A physical invasion of a neighbor’s property occurs when a landowner’s use of their property causes a landowner adjacent to them to be deprived of their enjoyment of their own property. Most of the time, the physical invasion of the property of another individual is considered to be a trespass because it involves the intrusion of a physical object onto another individual’s property.

On occasion, even a lawful activity on an individual’s own land may be considered an invasion of neighboring property if the use is considered to be unreasonable. An unreasonable use of property or land occurs when the adjoining owner is significantly deprived of their ability to use or enjoy their own property.

Is Physical Invasion Considered a Trespass or a Nuisance?

A physical invasion of a neighbor’s property can be considered a trespass or a nuisance, depending on the circumstances. A trespass is very similar to a nuisance. However, there are also major differences between the two legal concepts.

A trespass typically involves a physical object that intrudes onto another individual’s property. It involves more of a physical loss of possession and control over some or part of the land rather than the landowner’s ability to use or enjoy the property. Most trespass cases must involve a physical object. Some courts, however, have held that a minute particle, such as a chemical fume, may constitute trespass.

Trespassing may be considered a crime or a civil matter, depending on where the trespassing occurs and the laws of the state. For example, if an individual trespasses onto another’s property and steals personal property of the landowner, they may be charged with criminal trespass. On the other hand, if the trespasser breaks something on the landowner’s property, the landowner can sue the trespasser under civil tort law.

A nuisance, on the other hand, does not always involve a physical object. It may involve the intrusion of non-physical objects, such as:

  • Fumes;
  • Air-borne pollution;
  • Unauthorized burning of materials;
  • Posting of obscene or indecent signs or pictures;
  • Illegal gambling;
  • Offensive odors; or
  • Loud sounds or music.

A nuisance involves more of a landowner’s ability to use or enjoy their land rather than a physical loss of property possession. In some cases, nuisance may be a crime.

It is important to note that some activities may violate a local zoning laws or ordinance like construction, in which case the local city attorney or town counsel may be able to help an individual bring an action against their neighbor.

Additionally, if an individual lives in a condominium, cooperative, or planned community, the unreasonable conduct may be prohibited by the community bylaws or regulations. If so, the homeowner’s association may help an individual enforce the restriction against their neighbor.

Therefore, issues governing physical invasion of a neighbor’s property are more likely to be classified under trespass laws. However, many property disputes involve both trespass laws and nuisance laws, depending on the nature of the intrusion.

How Do I Prove Trespass to Land?

To prove that an individual is liable for trespass to land, the landowner must demonstrate:

  • The trespasser entered the land;
  • The land belonged to another;
  • The trespasser did not have consent to enter the land; and
  • Damages occurred.

It must first be shown that the trespasser entered the property. In some states, a defendant who entered property by mistake is still considered to be trespassing. If a defendant causes an object or thing to enter another’s land, it may also be considered trespassing.

The trespass claim must be brought against an individual who does not have a legal right or claim to enter the property. For example, a homeowner or tenant are not trespassers. However, a stranger who enters the property may be a trespasser.

The entry onto the property by the defendant must be unauthorized, either express or implied. For example, the mail carrier has implied consent to enter the property of another in order to perform their work duties.

In some jurisdictions, the defendant must have caused the plaintiff to suffer some form of damages. There is no requirement of intent. If the defendant’s actions are a substantial factor in the harm suffered by the plaintiff, the plaintiff may have a valid trespassing claim. It is important to note that, in most states, simply entering onto another’s property, even if no damages occur, is enough grounds for a valid trespassing claim.

What are Some Examples of Physical Invasion of Neighboring Property?

The physical invasion of a neighboring property typically involves some form of activity that interferes with the other landowner’s rights to possession or enjoyment of their land. Common examples may include:

  • Any individuals, objects, or things that are constantly protruding onto the neighbor’s property, of which the owner has some control over;
  • Runoff from water or streams that physically damages the neighbor’s property;
  • Debris or scraps from construction projects entering the neighbor’s property;
  • Objects falling or dropping onto the neighbor’s land; or
  • An individual depositing trash or scraps onto the neighbor’s property.

When are Physical Invasions Legally Actionable?

A physical invasion of a neighbor’s property is legally actionable when the affected landowner can show that the physical invasion is substantial, continuous, and unreasonable. Of these three factors, the most important is usually that the intruding activity is continuous. These elements must be shown in order for the affected landowner to recover damages.

For example, if a pet intrudes onto a neighbor’s property one time, that will likely not be considered continuous enough to constitute a violation. However, if the pet constantly intrudes onto the neighbor’s property and the landowner does not remedy the issue, it may constitute a violation and be grounds for recovery in a court of law.

What are the Consequences of Physical Invasion of Neighbor’s Property?

There are several legal consequences an individual may face if they are found liable for the physical invasion of a neighbor’s property. The aggrieved landowner may be entitled to the following legal remedies:

  • Compensatory damages, which include a monetary award to compensate for losses associated with property damage;
  • An injunction ordering the offending landowner to cease their physically intrusive activities; or
  • Special damages, which cover other types of damages that may be connected with the landowner’s trespass onto property.

It is also common for an offending landowner to be required to pay fines if their activity violates a zoning ordinance or an environmental hazard law. The offending landowner may even be subject to criminal penalties if their activities were of a criminal nature.

Do I Need a Lawyer for Physical Invasion of a Neighbor’s Property Issues?

Yes, it is essential to have the help of an experienced property lawyer with any physical invasion of a neighbor’s property issues. Property rights are protected under federal and state laws. If you find yourself involved in a property dispute, an attorney can advise you of the laws that apply in your jurisdiction, discuss your chances of recovery, and represent you during any court proceedings, if necessary.

If you are being accused of physical invasion of a neighbor’s property, an attorney can advise you of your rights, determine whether any defenses are available to you, and represent you during any court proceedings, if necessary.


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