Trespassing is the legal term for when a person enters onto another person’s land without his or her permission or legal right to be there. The trespassing may be considered a crime, a civil wrong, or both depending on where the trespassing occurs and the laws in that particular state.

For example, someone who trespasses onto another’s land and steals personal property of the owner can be charged with criminal trespass. Conversely, if the trespasser breaks something on the homeowner’s property, the homeowner can sue under civil tort law.

The following article discusses civil liability associated with trespassing.

What are the Elements to Trespass to Land?

Trespass to land is the common law tort that is committed when an individual or object of an individual intentionally or negligently enters onto another’s property without the legal right to do so. The elements to trespass to land is as follows:

  • An actual interference with the right of exclusive possession (known as “entry element”); and
  • An intent or negligence in entering the land of another.

How Does One Prove Trespass to Land?

To prove that a defendant is liable for trespass to land, the plaintiff must demonstrate the following:

  • The Defendant Entered the Land: Whether the defendant intentionally or negligently entered the property, the first element that must be proven is that the defendant entered plaintiff’s property. In some states, a defendant who enters the land by mistake is still considered trespassing. Causing an object or a thing to enter another person’s land may also be actionable as trespassing.
  • The Land Belonged to Another: A trespass claim must be brought against someone who does not have a legal right or claim to enter the land. For instance, a homeowner or tenant are not trespassers, but a stranger entering the property may be a trespasser.
  • The Defendant Did Not Have Consent: Entry onto the land must be unauthorized, either expressly or implied. A mail carrier has implied consent to enter onto the land of another in order to perform her work duties.
  • Damages: In some states, the defendant must have caused the plaintiff to suffer some sort of damage. The defendant need not intend to cause harm; instead, if the defendant’s actions are a substantial factor in bringing about the harm plaintiff suffers, the plaintiff may have a valid claim for trespassing.

It’s important to note that simply entering onto another’s land, even if there is no damage to the plaintiff or the plaintiff’s property, is often enough to bring about a valid trespassing claim in most states.

Must the Defendant Intend to Enter the Property?

Yes; in order for trespass to land to exist, the defendant must have intentionally encroached upon the property of another.

The defendant need not purposely desire to enter upon the plaintiff’s land, but if the defendant intended to enter land that did not belong to him and did not have a valid defense, he can be found liable for trespass to land.

What Damages May be Awarded?

A property owner or tenant has the right to receive compensation for trespass to land, and can recover for the following damage:

  • Loss of market value;
  • Discomfort and annoyance;
  • Emotional distress;
  • Loss of use of the property;
  • Costs of restoration; and/or
  • Physical injury to the person or to the land.

Should I Seek an Attorney?

In most instances you may use a trespass to land action to assert legal possession against potential easement or adverse possession claims.

A trespass to land action, however, may also be valuable if someone has caused injury to your property, either through actions such as failing to remove an object on the property or through toxic pollutants. Either way, seeking out a real estate attorney will assist in providing legal relief.