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Summary: here isSoloSuit's guide on everything you should know about trespassing.
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Trespassing is a crime that is often considered an infraction, and it is most commonly prosecuted as a misdemeanor. However, if you've been caught trespassing, the consequence depends on the state you are tried in. In most situations, trespassing is not a crime that you want to commit.
What is trespassing?
Trespassing is generally the entry onto land without the consent of the landowner. However, it can refer to a variety of offenses, against either a person or a person's property.
When it relates to real estate law, trespassing means entering onto land without the consent of the landowner. However, there are both criminal and civil trespass laws. The difference is that criminal law is governed by police, sheriffs, or park rangers. Civil trespassing is initiated by a private citizen who is a landowner, and then a private enforcement action in court needs to be handled in order to collect any damages.
Criminal trespass is usually related to burglary. Although this may sound consequential, criminal trespassing is usually considered a less serious crime in the eyes of the law. Most often criminal trespassing is tried as a misdemeanor or an infraction. This is not the same in every state, but the offense is usually examined and treated based on the circumstances. Additionally, criminal laws usually have stiffer penalties for entering a residence, versus other forms of trespassing.
Not only may someone suffer criminal charges due to trespassing, but they can also face civil liability. Trespassing is a violation of someone's property rights. Therefore a property owner can sue a trespasser for money, even when the trespasser does not cause any issue such as:
- The trespasser's presence did not hurt anyone
- The trespasser did not damage the property
What is considered trespassing?
There are a few specific acts that are considered trespassing. Most states generally describe trespassing as walking on private land that does not belong to you, but there are other acts that are considered trespassing as well.
In civil trespassing, trespass is an area of “tort” law, which means a “civil wrong”. It is generally divided into three groups:
- Trespass to the person = wrongful and unwanted interference of another person's body, liberty, or rights
- Trespass to chattels = wrongful interference of another person's property (other than real estate)
- Trespass to land = entry or use of another person's land without permission or good reason
However, any of the following can be considered trespassing. For example:
- Walking on someone else's land
- Hunting on someone else's land
- Cutting down trees without permission
- Tampering with vending machines
- Entering or remaining in a motor vehicle without the owner's permission
Intent and knowledge must be proven to be considered trespassing
The level of intent is the knowledge or intent that a trespasser has to cross another person's land. Therefore, in order to be convicted of criminal or civil trespass, there must be some level of intent required.
For example, a trespasser cannot simply wander onto someone else's land and be convicted of trespassing. Landlines are not always obvious. Should the owner tell the trespasser not to go on their land, or if the land is fenced, then this would be considered clear knowledge of the privacy of the property. Similarly, if a "no trespassing" sign is posted, this would be considered sufficient knowledge to avoid entry.
When the land is open, there is a much less likely chance that the trespasser will be convicted. Especially if their conduct did not substantially interfere with the owner's property, and the trespasser left once aware of the situation.
Express consent and trespassing
When a landowner specifically indicates that there is permission granted to enter their land, either verbally or in writing, it is considered to be express consent. It is essential to obtain this with a start and end date to ensure compliance and understanding on both sides. In most states, a landowner may give permission to enter their land for a limited time or purpose, but it is revocable at any time.
Implied consent and trespassing
In some cases, consent may be implied from the landowner's conduct, or from the specific circumstances. Even if the landowner was not able to give consent, it may be implied. Especially in the case that it is necessary to save a life or prevent a serious injury.
When a trespasser gets injured, the landowner may be liable
There are protections for trespassers if they get injured while in the act of trespassing. In some situations, homeowners may be liable for the injuries of the trespassers. This is usually if a landowner purposefully injured the person, or knew that trespassing is a common occurrence. Should they be aware of this, and keep their property in an unsafe condition, they may be liable.
This might mean a homeowner sets a booby trap or a tripwire. If the trespasser is injured by this wire, the homeowner may be liable for injuries.
Homeowners can prevent trespassing
If you have a problem with frequent trespassers coming onto your land, it is recommended to add a "Private Property" or "No Trespassing" sign in a visible place on the property. This makestrespassers aware that it is private land, and it also expresses that they have not been given consent to enter the land. Installing a video camera is also an option. Not only will a camera deter trespassers, but it can give you proof should something occur on your property due to unwelcome guests.
If you have been convicted of trespassing
In the event you are being prosecuted by the state for criminal trespassing, you need to understand what this means. If you are convicted, you could be fined or sentenced to jail. This means you should consider the following defenses:
- Trespassing did not substantially interfere with the owner's use of the property
- You left the property immediately after being aware, or after being confronted
- You personally had consent
- The property was actually open to the public
- The law gives you a right to enter the property due to an easement
- You entered the property out of necessity (such as being chased to seek safety)
Although each case will vary based on the situation, it is a good idea to get all of your facts in order and know how you wish to approach your case.
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