In addition to being subject to criminal charges for trespassing, you can also be sued for civil trespass under tort law. One form of civil trespass that you could face liability for is trespass to land. This is defined as the intentional and wrongful invasion of person’s land without that person's consent.
If you are sued for trespass, you may have some defenses available to you. These defenses include consent, public necessity, private necessity and/or privileged invasion.
What Defenses May I Have if I am Sued for Trespass to Land?
If you are sued for trespass to land, you may be able to use the following defenses. They can provide you an absolute defense or diminish the amount of damages that you will be responsible for.
- Consent: This is the most common defense to trespass to land. You can argue that the owner gave you permission to enter their land. Keep in mind that consent can be given through both words and actions. However, this defense will not work if the consent was induced by fraud or was given by someone who is incompetent, intoxicated or a minor.
- Public Necessity: This defense can be used when a person intentionally enters the land of another to protect the community. There must be an immediate and imperative need to enter the land. This defense will not be allowed if your actions were determined to be unreasonable under the circumstances.
- Private Necessity: This defense can be used when you enter another person’s land to protect your own interests. However, it is limited and can only be used if your actions were necessary to protect yourself from death or serious bodily harm or protect the land from serious destruction or injury.
- Privileged Invasion to Reclaim Personal Property: You also have the right to enter another person’s land if your purpose is recover your own personal property. Keep in mind that the reason you do not have the property must be either the landowner's fault or caused by an act of god, such as a storm or flood.
What are Not Considered Defenses to Trespass to Land?
If you face liability for trespass, it is important to know that certain arguments will be unsuccessful. For example, you do not need to harm the land to be liable for trespass.
You simply need to enter onto another’s land without permission. Additionally, if you mistakenly believed that they you were the owner of the land or did not think you were trespassing, this will not be a defense.
Do I Need to Contact an Attorney?
If you are sued for civil trespass to land, you should speak to a local real estate lawyer to determine if you have any of the above defenses available in your situation. If you do, a lawyer can help argue the defenses in court and attempt to get the case against you dropped.