Trespass

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For other uses, see Trespass (disambiguation).
"Unlawful entry" redirects here. For the 1992 film, see Unlawful Entry (film).
A sign warning against trespassing
A sign warning against trespassing
UK sign
UK sign

In law, trespass can be:

  1. the criminal act of entering another person's land or property without permission of the owner or lessee; [1]
  2. a civil law tort that may be a valid cause of action to seek judicial relief and possibly damages through a lawsuit - see trespass to land.[2]

In some jurisdictions trespassing is an infraction or misdemeanor covered by a criminal code. In other jurisdictions, it is not considered a crime or penal in nature. Property is protected from trespass under civil law and privacy acts. In England and Wales, despite the prevalence of notices asserting that "trespassers will be prosecuted", unless the trespass is aggravated in some way, it will only be a civil wrong.

Contents

[edit] Trespass law

Although criminal and civil trespass laws vary from each jurisdiction, the following facets are common:

  • Property owners and their agents (for example, security guards) may only use reasonable force to protect their property. For example, setting booby traps on a property to hurt trespassers and shooting at trespassers are usually forbidden except in extreme circumstances. Several US states, however, preserve to varying degrees the Castle Doctrine, a concept from English common law allowing the use of deadly force against trespassers. The US state of Texas in particular has especially broad guidelines for the acceptable use of deadly force.[1]
  • Not all persons seeking access to property are trespassers. The law recognizes the rights of persons given express permission to be on the property ("invitees") and persons who have a legal right to be on the property ("licensees") not to be treated as trespassers; for example, a meter reader on the property to read the meter. A police officer or process server seeking to execute a warrant is a licensee. A surveyor studying the land for government use (usually map making). Someone such as a door-to-door salesman or missionary (a Jehovah's Witness or Mormon for example), would be a solicitor and not afforded the invitee exclusion to enter the private portion of the premises, and therefore be a trespasser. In a more recent case, Jehovah's Witnesses refused to get government permits to solicit door-to-door in Stratton, Ohio. In 2002, the case was heard in the U.S. Supreme Court. The Court ruled in favor of the Jehovah's Witnesses, holding that making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the first Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills.[3]
  • Most jurisdictions do not allow "self-help" to remove trespassers. The usual procedure is to ask the trespassing person to leave, then to call law enforcement officials if they do not. As long as the trespasser is not posing an immediate threat, they cannot be removed by force. It is usually illegal to arrest a trespasser and hold them on the property until law enforcement arrives as this defeats the purpose of allowing them to cure the trespass by leaving. A large exception to this rule are railroads in the United States and Canada, who employ their own police forces to enforce state or provincial trespassing laws. Railroad police have the ability to independently arrest and prosecute trespassers without the approval or assistance of local law enforcement. Further, in many jurisdictions, trespassing on railroad tracks is considered a very severe offense comparable to drunk driving, with severe fines imposed on the tresspassers.
A sign warning against trespassing at Mater Dei High School in New Jersey
A sign warning against trespassing at Mater Dei High School in New Jersey
  • Most, though not all, jurisdictions allow "Benevolent Trespassing" for extreme situations. For example, if you have a car accident and somebody is injured, you may legally force entry into an empty building to call an ambulance. Similarly, if a structure is burning, one may forcibly enter to rescue persons trapped inside. The law assumes people will make a reasonable effort to notify property owners if possible.
  • Similarly "Good Samaritan" laws take precedent over property laws where applicable. Civilians are afforded certain protection in emergencies - people cannot generally sue their would-be rescuers for breaking ribs attempting CPR, or damaging property while helping a person in need. Obviously, professionals (EMT, Doctors, etc) are held to a higher standard, even when they're not "on the clock."
  • Marking property as private property can be done in a variety of ways. The most obvious way is to put up a sign saying "No Trespassing" or "Private Property". However, a continuous fence has the same effect in most places. Many jurisdictions allow the use of markers when fencing would be impractical or expensive. For example, Ontario, Canada allows the use of red paint on landmarks such as trees to mark the boundaries of private property.
  • Property owners may allow some trespasses while excluding others. For example a sign saying just "No Hunting" could conceivably allow hiking, snowmobiling, or bird-watching, but would give notice to hunters that they would be trespassing if they entered onto the property.
  • Trespass is not limited to human beings. For example, the owner of cattle or dogs may be responsible for an animal's trespass in some jurisdictions. Further by causing an object to enter a property one can committ an act of trespass, whether it be earthworks, flood water, or objects thrown onto the property or allowed to travel onto the property.

[edit] Other legal uses

  • Assault and battery are trespasses to the person and actionable in tort as such.
  • The unlawful interference with the goods of another is a trespass against his goods, and actionable in tort, usually as conversion or detinue.
  • Actions for breach of contract was developed by the common law courts out of trespass and came to be called trespass on the case.

[edit] Wider uses

The term 'trespass' is also used for a transgression in general, also in the traditional version of the Lord's Prayer.

[edit] Prevention

The front entrance of Whitwell Station, Reepham, UK, displaying some of the anti-trespassing techniques deployed.
The front entrance of Whitwell Station, Reepham, UK, displaying some of the anti-trespassing techniques deployed.

There are many methods land owners use to prevent trespassing, usually depending on the terrain, risk, importance (personal, cultural or economic) and size of the property.

Some of the most common are also the most basic - barbed wire, warning signs and fencing. See also Physical security.

[edit] See also

[edit] References

  1. ^ Dictionary of Real Estate law. Accessed May 28, 2008.
  2. ^ Inc.com article. Accessed May 28, 2008.
  3. ^ Watchtower Bible and Tract Society v. Village of Stratton — 536 U.S. 150 (2002)