Rights of Others to Enter Property That Is on Fire

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 What Is Trespassing?

Property owners have the right to use their property in any legal manner. This includes the right to prevent other people from entering their property, or trespassing. The crime of trespass is entering on the property of another, without their permission or proper authority.

Another way to put it is that trespass can be committed when a person enters property without knowing that they do not have a right to be there, but remain on the property after being asked to leave.

An example of this would be how a trespasser may start out as a guest of the property owner, but becomes a trespasser when they do not leave when asked to do so. Police officers, sheriffs, and park rangers are all tasked with enforcing criminal trespass laws.

A civil lawsuit for trespass is initiated by the landowner. They are generally seeking money damages in order to compensate them for any actual harm done to the property. Generally speaking, states require that the landowner proves actual harm to their property in order to recover damages in a civil action.

However, the landowner does not need to prove that the harm was intended; they only need to prove that the trespass was intended. It is important to note that because civil trespass is a matter of state law, such laws can vary widely from state to state.

In a criminal action, the district attorney is representing the interests of a governmental entity, such as a county. They bring the criminal action against the defendant, and seek criminal penalties when they charge a defendant with the crime of trespass. Criminal penalties generally include fines, time in jail or prison, or both.

In both civil and criminal trespass, the trespasser must enter on the property knowing that they do not have the permission or authority to do so. Simply put, the trespasser must have the intent to trespass. What this means is that a person who accidentally wanders onto land that is owned by another person cannot generally be guilty of criminal trespass, or held liable for civil trespass.

Who Can Enter Property That Is Actively On Fire?

Generally speaking, there are three categories of people who visit property that is owned by someone else:

  1. Invitees: These are people who, as the name implies, have been invited onto the property by the property owner for legal purposes. This can be either by express or implied invitation. An example of this would be inviting a friend over to your house. Another example of an invitee would be the customers of a store or restaurant. Invitees are the most broad category of premises visitors, and are owed the highest legal duty by the property’s owners;
  2. Licensees: These are people who are allowed to be on the premises for their own benefit, rather than the benefit of the property owner. A licensee is defined in some states as being “neither a customer, servant, nor a trespasser.” An example of a licensee would be a utility company who is on your premises in order to work on a county water line. Property owners are generally only held liable to a licensee when the licensee has been injured by something on the property that the owner should have reasonably known about and repaired; and
  3. Trespassers: As previously mentioned, a trespasser is someone who enters someone else’s property without their permission to do so. An example of this would be a burglar. The property owner is not liable if a trespasser is injured while trespassing.

In terms of who can enter property that is actively on fire, firefighters are allowed onto your land as licensees. The law has determined that the following parties have a special right to enter real property in furtherance of the state’s interests:

  • Police officers;
  • Firefighters;
  • Surveyors;
  • State electricity workers; and
  • Other public officers and servants.

This right could include crossing your land, and even causing damage to your land, in order to get to a burning house on your land or someone else’s land. Some jurisdictions have determined that the government is not even required to compensate you for your damaged property, due to the doctrine of “public necessity.” Public necessity will be further discussed below as a defense to trespassing.

Are There Any Defenses To Trespassing That Would Also Apply To A House Fire?

Some examples of defenses to trespassing that would also apply to a house fire may include, but not be limited to:

  • The Consent Defense: One common defense would be that you were given consent by the owner of the land or property. Consent can be granted by both words and actions. An example of this would be how if someone tells you that you can enter their property, you could argue that you were given consent. An example of an action that could constitute consent would be if someone waves you onto their land. You could also 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;
  • The Public Necessity Defense: This particular affirmative defense would be the most likely to be utilized in cases involving trespassing to enter a property that is on fire. In order to invoke this defense, the situation which triggers action must be an immediate and imperative necessity. Additionally, this must be an act that is done in good faith and for the public good.
    • An example of this would be a firefighter entering another person’s land in order to help prevent a fire from spreading throughout the neighborhood. The rationale of the public necessity defense is that when something threatens the whole community, and public interest is involved, you are able to take action intended to protect the public interest. However, it is imperative to understand that this defense is not available if the act becomes unreasonable, given the circumstances;
  • The Private Necessity Defense: Interfering with someone else’s land or chattel because of a private necessity is only allowed when your actions are necessary to protect any person from death or serious bodily harm. It may also be allowed when your actions are necessary to protect any land or chattel from destruction or injury. The intention behind this defense is that the preservation of life is more important than property rights. An example of this would be if you are running away from someone who is trying to shoot you, and you enter another person’s land; and
  • The Privilege Defense: This defense could be raised if you are attempting to recover land or property that rightfully belongs to you. Trespass would be allowed in this situation if you do not have your land or property because of something the land owner did, or an Act Of God.

You may claim that you believed that you owned the land that was trespassed on; this would be a mistake of fact. You could also assert the affirmative defense of benevolent trespassing, or trespassing in an attempt to achieve the greater good. This would be similar to the public necessity defense.

However, if property owners are reasonably available, alleged trespassers are required to contact them before entering the private property if it is possible and/or reasonable to do so.

Do I Need An Attorney For Issues Involving The Rights Of OThers To Enter Property That Is On Fire?

If you are involved in a legal dispute associated with trespassing to enter property that is actively on fire, you will need to contact an area real estate attorney. A local and experienced real estate lawyer can help you understand your state’s laws regarding the matter.

An attorney will also be able to represent you in court, as needed, after determining whether there are any legal defenses available to you based on the specifics of your case.


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