Trespassing is a legal term that can refer to a wide variety of offenses against a person or against property. Trespassing as it relates to real estate law means entering onto land without consent of the landowner. There are both criminal and civil trespass laws. Criminal trespass law is enforced by police, sheriffs, or park rangers. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible (regardless of whether a crime has been committed).
Intent and Knowledge Requirements
Traditionally, for either type of trespass -- criminal or civil -- some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign is posted. A trespasser would probably not be prosecuted if the land was open, the trespasser's conduct did not substantially interfere with the owner's use of the property, and the trespasser left immediately on request.
The landowner may indicate -- verbally or in writing -- permission to enter onto the land.
The existence of consent may be implied from the landowner's conduct, from custom, or from the circumstances. Consent may be implied if the landowner was unavailable to give consent, and immediate action is necessary to save a life or prevent a serious injury.
Homeowner Liability: What if a Trespasser Gets Hurt?
As bizarre as this may sound, there are some limited protections for trespassers if they get injured while in the act, so to speak. Homeowners can typically be liable to trespassers if they willfully injured the person or knew or should have known about the presence of frequent trespassers and kept an unsafe condition.
What does all this mean? Well, let's say you, as a homeowner, set up a booby trap for a trespasser that sets off a shotgun if someone triggers a wire. Now let's say that happens and it causes severe injuries to the trespasser. While this might seem unjust to some, you may be a liable for the injuries the trespasser sustains. More examples include booby traps, trip wires, bear traps, bamboo tiger pits, and other devices.
What are some things you can legally do? For one, if you are concerned about trespassers coming onto your land, start with a "Private Property" or "No Trespassing" sign in a visible place. Not only does it put the trespassers on notice, it conveys your intent to keep your land to yourself and not as a make-shift easement for others. Next, you should consider installing video cameras in the traveled area. The presence of the camera itself can be a deterrent to some. Be sure you are up-to-date on your state's laws regarding videotaping or filming before installing a camera. You can do this by speaking with a local attorney.
Trespassing Basics: Additional Resources
- Select State Laws on Hunting and Trespassing
- Adverse Possession: Continuous Trespassers' Rights
- Land Use and Zoning Basics
Have Questions About Trespassing? Talk to an Attorney
If you think someone is entering your property unlawfully, it will help to get an understanding of trespassing law and the various exceptions. Get in touch with a skilled real estate attorney near you to learn how the law applies to your particular situation.