What is Trespassing?

Trespassing is the act of deliberately entering the property of another without their permission. A trespasser interferes with the property owner’s right to exclusive possession of their property. There are other forms of trespass, as well.

There Are Different Forms of Trespass:

Historically speaking, trespass is one of the oldest crimes in existence. Although there are numerous forms of trespass, many jurisdictions recognize three broad areas:

  • Trespass to the person
  • Trespass to land
  • Trespass to chattels

Over time, these various forms of trespass have been codified into law and “modernized” for relevancy. It is technically a crime of trespass when one person assaults or batters another. It is impermissible to interfere with the freedom of another, and it is a trespass against their person when that interference occurs. Similarly, it is impermissible and an offense to interfere with the personal property of another.

For example, it is a trespass to chattel to interfere with another’s physical or electronic mail (email). Finally, it is an offense to physically trespass on the land or real property of another.

What is Trespass to the Person?

The three broad areas of trespass to the person are:

  • Assault
  • Battery
  • False imprisonment
  • Trespass to the Person; Criminal and Civil Offense:

    In some circumstances an assault may be both a criminal and civil offense. The individual may face criminal charges for assaulting another as well as civil liability in the form of damages. Although in these modern times most people do not recognize assault, battery or false imprisonment as forms of trespass, they most certainly are.

    Trespass to Chattels or Land

    Trespass to chattel is the interference of a person’s right to property, including personal property. For example, there have been numerous lawsuits against bulk emailers for trespassing against upon the internet service provider (ISP) and sending millions of bulk emails.

    Trespass to Land:

    The type of trespass that most people identity with is trespass to land. This includes physically entering the land of another without their permission, thereby interfering with their right to sole possession and ownership. In other words, in ideal circumstances an owner of property has complete control over their land and intruders do not have the right to enter or disturb that possessory right. Landowners constantly sue over rights to airspace and underground property. Statutes have limited owner’s rights; for example, an owner of property does not have the right to unlimited airspace. Planes and satellites have the right to travel over the land – in the air - of the owner without their permission.

    What is my defense to trspassing charges?

    There are numerous defenses to trespass to land, including:

    • Necessity – for example, where a person is in danger and help is called for and the land is trespassed upon
    • Consent – may be a defense when the owner of the property has given their consent either expressly or through inaction when prior trespasses have occurred
    • Privileged invasion – in some circumstances trespass is permitted when the landowner was at fault, or where an “Act of God” – such as a tornado, hurricane, flood, storm, fallen tree - necessitates entry

    Penalties for Trespassing

    Penalties vary from state to state. In some states trespass is a misdemeanor and the maximum fine is $1000 and/or up to six months in jail (Nevada). In many circumstances trespass may be reduced to a small fine of $100, more or less. In other states trespassing upon private property may be charged as a felony, with a maximum sentence of 18 months (New Jersey).

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    Michael S. Berg
    Attorney At Law