The most basic definition of trespassing is when someone unlawfully enters the property of another without permission or proper authority. But there are many considerations that are attached to the word that can have a serious effect on both the alleged trespasser and the victim/owner of the property.
In most states and federal courts, legal actions are divided into civil and criminal categories. Each is a separate court system, defined by a separate set of laws, with separate sets of consequences. Here is a short guide to trespass laws in the United States.
For civil trespass, the elements of civil is as much as the same as criminal, but with some important distinctions. While a person improperly entering someone’s property fits the definition, causing something to enter someone’s property can also be deemed trespass.
Whether someone runs through your yard without permission or hits a baseball through your window, either can be considered trespass in a civil suit. Of course, the point in filing a civil suit is usually to collect reparations if your property is damaged. Most states require that a plaintiff prove actual harm to their property, although they do not need to prove that the harm was intended.
In addition, many jurisdictions also allow civil actions for trespass to personal property, also commonly known as trespass to chattels. This is when someone intentionally interferes with the personal property of someone else and they suffer some damage or injury as a result. The main goal of a civil trespass suit is repayment for any damage that the property suffered as a result of the interference.
For criminal trespass, the prosecution needs to show that the accused:
- Unlawfully entered or remained on someone else’s property without permission; and
- Was aware that they did not have permission to be on that property.
Intent is an important element to a criminal trespass charge, and accidental entry often does not qualify. This is why “private property” and “no trespassing” signs can be important factors in proving that the defendant is guilty.
You can also be arrested if you remain in a place you are specifically told you are no longer allowed. This means that while your entry may be permissible, there can be a point where the permission is withdrawn and you can be arrested and charged with trespassing nonetheless. For example, if you are in a grocery store and then were told you must leave, then you must leave the grocery store or you can be charged with trespassing.
In most states, trespassing is categorized as a misdemeanor, which is a less serious offense than something like a burglary charge. Nevertheless, if convicted it is still a criminal offense that can go on your record. Depending on the circumstances of the crime, punishment can range from fines to possible prison time.
The location of the trespass makes a difference as well. Unlawful entry into a school, for example, is considered more serious than trespassing on an empty field. Some states elevate trespassing to a felony for illegal entry into construction sites and other dangerous places. Any punishment an individual receives for another crime can also be amplified if committed in the commission of the trespass.
Many legal defenses for criminal trespassing involve showing that there was no intent to trespass. If you are forced onto the property by someone else (like you were chased onto the property) or were not aware that you were trespassing in the first place, then there is no criminal intent.
In addition, showing that you had the proper permission or consent of the owner to be on the property are also proper defenses to a trespassing charge. There are also defenses for a civil trespass accusation.
In addition to the obvious consent defense, you can also assert a public or private necessity defense. A public necessity means that the trespass was necessary for the safety or good of the public, such as trespassing onto someone’s property to help stop the spread of a fire.
A private necessity has to do with personal safety. If you are being chased by an attacking animal and run onto someone’s property to prevent death or serious bodily harm, then you can claim the affirmative defense of private necessity.
Many property owners want to know the measures they can legally take to protect themselves from trespassers. Posting signs is the best way to warn potential trespassers from coming onto or remaining on your property, but be careful about taking any actions other than calling the police. Unless your state’s laws say otherwise, you cannot use physical force or violence to remove a trespasser unless you are in immediate physical danger.
Like using traps or defenses that hurt trespassers if they sneak onto your property, such as trip wires or snapping traps. While these might seem to be a good solution, property owners can face serious repercussions if they choose to protect their home this way. However, if you use these traps with the intention and purpose of keeping out wild animals but a trespasser happened to get stuck in one, then you most likely have a defense.
Whether it is a criminal charge or a civil lawsuit, if you are faced with a trespassing claim your first call should be to an attorney. A local criminal defense lawyer can protect you from a criminal charge, and a local personal injury lawyer can protect you from a civil suit. Be sure to protect your rights and give yourself the best possible chance to succeed.