Trespass

SIGNIFICANCE: Trespass is a complex area of both civil and criminal law that takes many forms and has close ties to other criminal offenses; because trespass touches on so many aspects of daily life, it is the basis for frequent legal disputes and concerns.

When someone enters the property of another without permission, there is a possibility of a civil or criminal offense if harm or injury occurs. There are several types of trespass, remedies for the offense, and grounds for defenses against charges of trespass.

Trespass Involving Property

Real property consists of immovable areas on the ground and their vegetation and structures, as well as the right of the property’s owners to possess, enjoy, dispose of, and control the property’s use. Part of that right is the right to exclude others from the property. Trespass to land is the unlawful interference with the ownership of real property involving intentional, negligent, or reckless behavior that results in damage.

Trespass to land usually involves traveling on the surface of other persons’ real property. Such trespass may entail treading down a lawn, destroying vegetation, entering a structure, or obstructing entry to the property. Such acts constitute trespass whether they are performed by a person or a person’s employees, servants, or animals.

Trespass may also involve going above or below someone’s property. Branches and roots of trees on one property may be regarded as illegally encroaching on the real property of a neighbor. Timber trespass occurs when intruders remove trees or harvests from trees without the owners’ permission. Unauthorized drilling for oil under another person’s land is also a form of trespass. Aircraft and balloons may be regarded as trespassing on the airspace of a property if they damage the property below. On the other hand, boating or swimming past someone’s property in a lake or stream is not considered trespassing.

Environmental trespass may involve air or soil pollution, whether from public (such as smelly sewers) or private (such as factory waste dumping) sources. Continuing trespass occurs when the intrusion is not temporary, as when someone dumps trash on another person’s land and does not remove it.

Recreational trespass involves damage to parklands, lakes, and rivers, as well as plants and forests, whether publicly or privately owned. Camping, picnicking, or playing football is trespass when it takes place on land owned by others. Bottomlands trespass occurs when a property owner adjacent to a lake or stream tries to place anchors or docks on the bottomlands of another person’s property without permission. Refuge trespass applies to any unlicensed person who hunts, traps, injures, molests, or destroys wildlife on government land or waters.

Vehicle prowling is a form of trespass that occurs when someone unlawfully enters a motor home or a sailboat or vessel equipped for mechanical propulsion that has a cabin with permanently installed sleeping quarters or cooking facilities.

A charge of trespass can apply to a public facility or a place of public accommodation, such as a cinema, hotel, shopping mall, or public street, if individuals are disruptive. Examples may include overly aggressive panhandlers, unruly drunks, loud or obnoxious persons, or gang members who claim space as part of their turf and try to exclude others. In a business establishment, protesters and strikers can be charged with trespass.

Aggravated trespass involves activity that disrupts, obstructs, or intimidates individuals from engaging in lawful activity. The most common offense occurs near facilities for abortions, where protesters may behave in a threatening manner so that those seeking abortions are fearful of entering.

Trespass on the case occurs when the resulting damage is a remote consequence of the act of entering another’s property. A possible example is a duck that has been shot down by a hunter that lands on valuable property not owned by the hunter.

Trespass also applies to personal property. Conversion is taking someone’s personal property, such as finding a hat in someone’s basement and leaving the premises with the hat but without asking permission. Trespass to chattels occurs when someone substantially interferes with an individual’s personal property; for example, one who steals authorization codes to make unauthorized long-distance telephone calls is trespassing on the telephone company’s telephone lines and switching systems. The same applies to repeated, unwelcome faxes or telephone calls. In the time of slavery, damage to a slave by someone other than the slaveowner was a form of trespass to chattels.

Some attorneys have argued that unwelcome e-mail (“spam”), computer viruses and worms, and website intrusions by hackers constitute computer trespass because the intrusion is on the electrons involved in cyberspace.

The offense of breaking and entering is a form of criminal trespass. Entry is trespass; breaking (subsequent damage or theft of property) constitutes criminal trespass. However, the charge of criminal trespass becomes incidental if more violent crimes are committed when the trespass takes places.

The increased prevalence and use of drone technology has also sparked a debate over trespassing and protecting private property. In the first decades of the twenty-first century, small recreational drones have become affordable enough for regular citizens to fly them in their neighborhoods. Several cases have occurred in which people have been brought up on charges for shooting down or otherwise destroying drones because they were hovering over their property and essentially trespassing. While some argue that these reactions are justified, others claim that the damage typically caused by the drone trespassing on private property does not outweigh the damage caused by the destruction of the drone.

Trespass Involving Persons

Stalking, which occurs when one individual persistently tracks down and follows another person, involves trespass when the stalker gains entry into the property or house of an individual, even though no harm may be intended, because of the psychological effect on the person stalked. Aggravated stalking occurs when stalking continues even after a court has issued a restraining order again the stalker.

Audio trespass is concerned with noise pollution. From high-decibel boomcars to drag racing, loud noise can cause hearing loss, disturb sleep, increase stress, and even interfere with the ability to hear such emergency signals as police sirens.

Chemical trespass or toxic trespass exists when toxic chemicals are present in the human body at medically unacceptable levels. The sources include polluted tap water used for drinking and such toxic chemicals as pesticide sprays that enter the airspace of real property and find their way into the lungs or onto the skin of those at home.

Establishing Criminality

Criminal trespass occurs when trespassers intentionally enter properties belonging to others, using force, and injuries directly result. For example, a pet owner who deliberately sends a dog to attack a person or dog on another’s property is liable for criminal trespass. However, pet owners are not criminally liable when their pets merely stray onto other properties, even though the other property owners have the right to use reasonable force to remove the animals. Police officers are empowered to arrest those suspected of criminal trespass, but they usually leave other forms of trespass to civil suits.

Charges of criminal trespass may be incidental to other offenses. Courts judge first-degree from second-degree criminal trespass on a case-by-case basis. Criminal trespass can be either a felony or a misdemeanor, depending on the extent of damage caused by the trespass. Computer trespass, for example, is commonly a felony.

Stalking can be established as criminal if a reasonable person’s response to the actions of the stalker would be to feel fearful, intimidated, terrorized, frightened, threatened, harassed, or molested. The stalker must also cause the victim to experience any of these feelings to an intense degree.

In the case of trespass to chattels, criminality can be determined from four tests:

•Is the chattel dispossessed?

•Is use of the chattel made unavailable for a long period?

•Is the condition, quality, or usefulness of the chattel impaired?

•Is there actual harm to the chattel?

Remedies and Penalties for Trespass

Property owners who post “No Trespassing” signs on their property may mistakenly believe that there is an absolute right to use force to resist a trespasser. Instead, there is a legal procedure to follow to stop intruders from entering properties, such as shopping malls. Owners or lawful tenants must first issue proper trespass warnings. The latter are verbal or written warnings phrased precisely in the manner prescribed by law, which usually requires that the warnings indicate the names of the owners and how long entry is barred. Moreover, landowners who fail to post notices of dangerous conditions on their land may be liable for injuries incurred by trespassers.

In cases of recreational trespass, the posting of signs large enough to be read, even without protective fences, are sufficient notice. Persons who merely picnic on someone else’s land and knowingly disregard no-trespassing signs are engaging in civil trespass.

Persons who do not heed proper trespass warnings may be taken into custody by licensed security officers and later arrested by government police. However, second and third warnings are often issued for nonviolent trespassing before arrests are made. Such lawbreakers as shoplifters are subject to immediate detention pending police arrest.

Property owners can ask courts for injunctions to stop civil trespass. The courts may issue cease-and-desist orders to chronic trespassers. They may also order mandatory injunctions to remove structures encroaching on property if the trespasser has acted intentionally and in bad faith. If a tree is involved, the owner of the property on which the tree overhangs may trim branches of the tree so long as the integrity of the tree is not compromised. In cases of stalking and repeated trespass, courts may issue restraining orders.

If someone strikes oil under another property owner’s land, the owner of the land is entitled to royalties, provided that the deed of ownership includes mineral rights.

Laws prescribe a variety of penalties for criminal trespass that may include imprisonment and fines, depending upon the circumstances and the specific laws. Deliberate destruction of or damage to property can be treated as criminal trespass and involve liability for double or triple compensatory damages. There are two ways to determine compensatory damages—the replacement costs of the damages or the differences in property values before and after the trespass. In addition, punitive damages can be awarded when a wrongful act is deliberately committed without just cause or excuse.

Trespass causing emotional distress—notably stalking offenses—may result in awards of punitive damages if the offenses are deemed beyond the bounds of decency, recklessly ignoring the victim’s emotions. Victims of trespass may also recover attorney’s fees.

Defense Against Criminal Trespass

The most common defense against a charge of civil trespass is that the act of crossing into someone else’s property was unintentional or harmless. Judges often dismiss trespass charges when no damage results. The law recognizes a nuisance instead of a trespass when the intrusive activity is minor or the intrusion results in intangible distress, such as interference with someone’s enjoyment of peace and quiet when a dog barks excessively.

Criminal trespass does not apply in certain cases:

•When the buildings or vehicles entered have been abandoned.

•When the premises are open to members of the public and the trespassers comply with all lawful conditions imposed on access.

•When alleged trespassers may reasonably believe that the property owners or their agents would permit entry.

•When the alleged trespassers enter to prevent harm emanating from one property to visit another.

•When there are legal reasons to enter, such as serving subpoenas or legal documents.

Exceptions

An easement is a right of a nonowner to enter another person’s property for legitimate purposes. For example, if one residence is behind another, and both are accessed by the same driveway, the landlocked resident in the rear has an easement to use the driveway, even if it is owned solely by the resident in front. Census workers, firefighters, letter carriers, police, regulatory inspectors, tax assessors, and utility personnel also have easements to enter properties to engage in their necessary business.

When owners fail to keep up their property, the owners of adjacent properties may want to use and own the land. Such lands can be acquired in court by the neighbors through the principle of adverse possession after the neighbors demonstrate continuous, exclusive, and open use of the land in question for their benefit for five or more years. In some states, the nonowners must also pay all property taxes on the disputed land.

If there are weeds on a steep slope that can be removed only by entering an upslope property, the owner of which refuses access, a court may award the downslope property owner an easement by prescription if the latter fulfills all the conditions of adverse possession except for payment of property taxes. A property owner can avoid loss of ownership through either method by granting written permission to use the land for a specific purpose, sometimes known as the principle of neighborly accommodation.

The principle of implied dedication can establish a right to use private property without a charge of trespassing. For example, owners of beachfront properties might allow a government agency to pave an access road to a beach on privately owned land, thereby enabling the public to gain access to the road and the beach. However, if users of the road prove to be disruptive, they may be found to be engaging in civil or criminal trespass.

Bibliography

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Kennedy, Caroline, and Ellen Alderman. The Right to Privacy. New York: Vintage, 1997. Print.

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"Trespass." Cornell Law School, August 2023, www.law.cornell.edu/wex/trespass. Accessed 11 July 2024.