The owner of property has the right to use that property in any legal manner they wish, including keeping other individuals from entering their property. Trespassing, or trespass to land, occurs when an individual enters onto another individual’s land without their permission or without a legal right to be on the property.

Trespassing may be a crime, a civil tort, or both, depending on where the trespass occurs and what the laws are in the state. Trespassing can also occur when an individual enters another individual’s property without knowing it, but remains after being asked to leave.

For example, an individual who trespasses onto another individual’s land and steals their personal property can be charged with criminal trespass. On the other hand, if the individual who trespasses causes damage on the homeowner’s property, the homeowner can sue under civil tort law.

Other examples of trespassing may occur when an individual is a guest of the property owner but becomes a trespasser when they are asked to leave the property. Criminal trespass laws are enforced by police officers, sheriff’s deputies, and park rangers.

What are the Elements to Trespass to Land?

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

  • An actual interference with the right of exclusive possession, which is known as the entry element; and
  • An intent or negligence in entering the land of another.

The definition of criminal trespass can vary by state. However, the general elements of criminal trespassing typically include:

  • Intentionally entering or remaining on;
  • Another individual’s property; and
  • Without authorization or consent.

How does One Prove Trespass to Land?

Generally, in order to show that the defendant is liable for trespass to land, the plaintiff must show:

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

It must be shown that the defendant entered onto the land. This can be done either negligently or intentionally. In some states, even if the defendant entered the property by mistake, it is still considered to be trespassing. Causing an object to enter another individual’s land may also be considered trespassing.

The land must have belonged to another individual in order for the action to be trespass. The claim must be brought against an individual who does not have a legal claim or right to enter the land.

It must be shown that the defendant did not have consent to enter onto the land, neither express nor implied. In other words, the defendant’s entry onto the land must be unauthorized. It is important to note that mail carriers have implied consent to enter onto the land of another in order to perform their work duties.

In some states, it must be shown that the defendant caused the plaintiff damages. It is not required that the defendant intended to cause harm. Instead, it must be shown that the defendant’s actions were a substantial factor in bringing about the harm the plaintiff suffered.

It is important to note that simply entering onto another individual’s land may be enough for the plaintiff to bring a valid trespassing claim in many states. This may be the case even if the defendant does not cause any damages to the plaintiff or their property.

Trespass to land examples include:

  • Hunting on property where the individual is not authorized;
  • A construction company throwing debris onto neighboring property;
  • An individual remaining in a restaurant after being asked to leave;
  • An individual remaining in another individual’s home after being asked to leave; and
  • Being in a place that closes at dark after hours, such as a park or graveyard.

Must the Defendant Intend to Enter the Property?

Yes, in order for trespass to land to occur, the defendant must have had intent to enter the property of another. The defendant need not have purposely desired to enter onto the plaintiff’s land; however, if the defendant intended to enter onto some land that did not belong to them and they do not have a valid defense, they may be found liable for trespass to land. 

In other words, if they intended to trespass on lot A but trespassed on lot B instead, they are still liable for trespass because they intended to enter land they did not own.

What are the Possible Defenses for Trespass to Land Case?

There are several defenses that may be available to an individual who is sued for trespass to land. These defenses may provide an absolute defense or may only diminish the amount of damages the individual is liable for, depending on the circumstances. Defenses that may be available include:

  • Consent;
  • Public necessity;
  • Private necessity; and
  • Privileged invasion to reclaim personal property.

Consent is the most common defense to a trespass to land claim. The defendant can argue that the owner gave them permission to enter the land. It is important to note that consent may be given by both words and actions. However, this defense will not be successful if the consent was induced by fraud or was given by an individual who was incompetent, intoxicated, or a minor.

The public necessity defense may be used when an individual intentionally enters onto the land of another in order to protect the community. In order to use this defense, there must have been an immediate and imperative need to enter the land. A defendant cannot use this defense if their actions were determined to be unreasonable under the circumstances.

The private necessity defense may be used when an individual enters onto another individual’s land to protect their own interests. However, this defense is limited and may only be used if the individual’s actions were necessary to protect themselves from death or serious bodily injury or to protect the land from harm or serious destruction.

The privileged invasion to reclaim personal property defense gives an individual the right to enter onto another individual’s land if their purpose is to recover their own personal property. It is important to note that the reason the individual no longer has their property must either be the other individual’s fault or it must have been caused by an act of God, which may include a storm or a flood.

It is important to note that there are some circumstances that will not be considered a defense. For example, if the trespasser mistakenly believes that they were the owner of the land. Additionally, if the trespasser did not think they were trespassing, that cannot be used as a defense.

What Damages May be Awarded?

The property owner or tenant has the right to receive compensation for a trespass that occurs to their land. Damages may include compensation for:

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

Should I Seek an Attorney?

Yes, it is essential to have the assistance of an experienced property lawyers for any trespass to land issues you may have. You may be able to bring a trespass to land claim if someone has caused harm to your property, either by their actions, such as failing to remove an object or through other means, such as toxic pollutants.

Your attorney can review your case, determine if you have a trespass claim, and represent you during any court proceedings. If you have been accused of trespassing, your attorney can assist you in presenting a defense to the claim. 

It is also important to be aware that you may be able to use a trespass to land claim in order to assert legal possession of property against a potential easement or adverse possession claim. Your attorney can advise you on this possibility.