A property owner has the right to use their property in any legal manner in which they wish to do so, which includes keeping other individuals from entering their property. Trespass to land, or trespassing, occurs when an individual enters only another individual’s land without a legal right to be on the property or without the landowner’s permission.

Trespassing may be classified as a civil tort, a crime, or both, depending upon where the trespass occurred and the laws of the state in which the trespass occurred. For example, if an individual trespasses on another individual’s land and steals their personal property, they may be charged with criminal trespass.

In contrast, if the individual who trespassed upon the property caused damage to that property, the homeowner may sue under civil tort law. There are also other examples of trespassing which may occur when an individual is the guest of the property owner but becomes a trespasser when they are asked to leave the property.

The laws governing criminal trespass are enforced by:

  • Sheriff’s deputies;
  • Police officers; and
  • Park rangers.

Who is Considered a Trespasser?

An individual is considered a trespasser when they enter another individual’s property and overstay their permitted time on the property without the authority or permission to do so. A guest who is invited may become a trespasser once their invitation expires or if they fail to leave the property after they are ordered to do so by the owner of the property.

In the majority of states, trespassing is a crime. It may also create civil liability for the trespasser. This means they may be required to pay damages to the property owner.

How does One Prove Trespass to Land?

There are certain elements a plaintiff must show in order to prove the defendant is liable for trespass to land. These include:

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

The plaintiff must show that the defendant entered onto the land. This entry may be negligent or intentional.

In certain states, even if a defendant enters onto the property by mistake, it may still be considered trespassing. If a defendant causes an object to enter onto the land of another individual it may also be considered trespassing.

It is important to note that the property must have belonged to another individual in order for the defendant’s actions to constitute trespass. A claim must be brought against an individual who does not have the legal right to enter the land.

The plaintiff must also show that the defendant did not have consent to enter the property, either express or implied. In other words, the defendant must have made an unauthorized entry upon the land. It is important to be aware that certain individuals, such as mail carriers, have implied consent to enter upon the land of another in order to perform their job duties.

In certain states, the plaintiff must show that the defendant’s trespass caused damages. It is not necessary for the defendant to have intended to cause harm.

It must be shown that the actions of the defendant were a substantial factor in bringing about the harm which the plaintiff suffered. It is important to note that if an individual simply enters onto the property of another individual, it may be enough for a plaintiff to bring a valid claim of trespassing in many states.

This applies even if a defendant did not cause any damages to the plaintiff or to the plaintiff’s property. Common examples of trespass to land include:

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

Is it Trespassing if the Trespasser Did Not Intend to be There?

No, it is not considered trespassing if the trespasser did not intend to be there. As previously noted, trespassing is both an intentional tort and an intentional crime.

One of the elements required to prove trespass is intent on the part of the trespasser. Intent means that the trespasser meant to enter or remain on the property.

Examples of situations where the trespasser did not have intent to trespass may include an accidental entrance or being unable to leave the property once they were asked to. For more information about these issues, see the following LegalMatch articles:

Does the Trespasser Have to be Inside the Property to be Trespassing?

No, a trespasser does not have to be inside the property in order to be trespassing. A trespasser, as noted above, can also cause an object other than their person to enter the property.

This may include litter, rocks, or other items which are thrown onto another individual’s property. It is important to note, however, that loud noises and smoke are not considered trespassing. These types of issues are considered to be a nuisance.

What can a Landowner do to Eject a Trespasser?

In many jurisdictions, to eject a trespasser, a landowner must first ask the trespasser to leave and/or call law enforcement if the trespasser fails to do so.

Generally, self-help methods, including physically removing the trespasser, are illegal. In addition, detaining the trespasser is frequently illegal as well even if a landowner is only doing so until law enforcement arrives.

What Can a Landowner Do to Prevent Trespassing?

To prevent trespassing, a landowner may use signs and fencing to indicate to a potential trespasser that their property is private and other individuals are not permitted to enter.

A landowner, however, is not permitted to create a trap or to use a physically harmful method to hurt or injure a potential trespasser.

What Happens if the Trespasser has been on the Property for a Long Period of Time?

In some cases, an unwanted guest on the property is no longer considered a trespasser if they have been there for a significant period of time. In these cases, they may be treated as an unauthorized or non-paying tenant.

It is important to note that each jurisdiction has its own time requirements as well as procedures for removing these types of individuals. In the majority of states, a landowner is required to provide notice to a tenant, or long-time trespasser, to leave the property.

If the tenant fails to leave the property in the legal time frame, a landowner may then file a legal eviction. This means that the tenant may be removed by law enforcement after the eviction is granted.

Can a Trespasser Sue the Property Owner if the Trespasser is Injured on the Property?

In certain rare instances, yes, a trespasser may sue a landowner for their injuries. A landowner is required to warn of any hidden defects on the property which are known.

This can be done using signs or other means of indication which would warn potential trespassers of the danger. Generally, however, the land owner does not have a duty to inspect the property for these types of dangers to trespassers.

When Do I Need a Lawyer?

It is important to have the assistance of a property lawyer if you have been accused of trespassing. If you have been charged with the crime of trespassing, a criminal lawyer can assist you by defending you in court.

If you are a landowner who wants to sue a trespasser or who needs to protect yourself from trespassers, a personal injury lawyer or real estate lawyer can assist you. Your lawyer can review the circumstances of your case, advise you regarding your local laws, and represent you in court, if necessary.