Trespass to land, also called trespass to realty or trespass to real property, or sometimes simply trespass, is a
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
tort
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
or a
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
that is committed when an individual or the object of an individual intentionally (or, in
Australia
Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
,
negligently) enters the land of another without a lawful
excuse
In American jurisprudence, an excuse is a defense to criminal charges that is a distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, ...
. Trespass to land is ''actionable per se''. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...
or an
injunction
An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...
to remedy the tort.
By law, trespass for
mesne profits is a suit against someone who has been ejected from property that did not belong to them. The suit is for recovery of damages the trespasser caused to the property and for any profits he or she may have made while in possession of that property.
For a trespass to be actionable, the
tortfeasor
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with crim ...
must voluntarily go to a specific location but need not be aware that he entered the property of a particular person. If A forces B unwillingly onto C's land, C will not have action in trespass against B because B's actions were involuntary, but C may instead claim against A. Furthermore, even if B voluntarily entered C's land, if B was deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass.
In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia,
negligence
Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...
may substitute the requirement for intent.
If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the landowner may forever lose the right to seek a remedy, and may even forfeit certain property rights in the case of
adverse possession
Adverse possession in common law, and the related civil law (legal system), civil law concept of usucaption (also ''acquisitive prescription'' or ''prescriptive acquisition''), are legal mechanisms under which a person who does not have title (p ...
and
easement
An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
by prescription.
Trespass may also arise upon the
easement
An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access.
In some jurisdictions trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.
The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to heaven and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put up structures to prevent this. The courts have been more lenient with putting up structures to prevent underground trespass. The Kentucky Court of Appeal in ''
Edwards v Sims'' (1929) 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reluctant to do so in ''Di Napoli v New Beach Apartments'' (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.
There may be
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
s that hold a trespasser to a higher
duty of care
In Tort, tort law, a duty of care is a legal Law of obligations, obligation that is imposed on an individual, requiring adherence to a standard of care, standard of Reasonable person, reasonable care to avoid careless acts that could foreseeab ...
, such as
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
for
timber trespass
Lumber is wood that has been processed into uniform and useful sizes (dimensional lumber), including beams and planks or boards. Lumber is mainly used for construction framing, as well as finishing (floors, wall panels, window frames). ...
(removing trees beyond a permitted boundary), which is a type of
trespass to chattels
Trespass to chattels, also called trespass to personalty or trespass to personal property, is a tort whereby the infringing party has intentionally (or, in Australia, negligently) interfered with another person's lawful possession of a chattel ...
as a result of a trespass to land.
Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner's
quiet enjoyment of his rights, there may be an action for
nuisance
Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means something which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "com ...
, as where a disagreeable aroma or noise from A drifts across the land of B.
Trespass ab initio occurs when a person is granted access to land but then abuses that access. The entry to the land is considered to have been a trespass from the beginning. This applies only to access given by law, not to access given by a person (as established by the
Six Carpenters' Case
6 (six) is the natural number following 5 and preceding 7. It is a composite number and the smallest perfect number.
In mathematics
A six-sided polygon is a hexagon, one of the three regular polygons capable of tiling the plane. A hexagon a ...
).
Ireland
Trespass in
Republic of Ireland law
The law of Ireland consists of constitutional, statutory, and common law. The highest law in the State is the Constitution of Ireland, from which all other law derives its authority. The Republic has a common-law legal system with a written co ...
is similar to
trespass in English law
Trespass in English law is an area of English tort law, tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land.
Trespass to the person comes in three variants: assault, which is "to act in s ...
. The Criminal Justice (Public Order) Act 1994 made it an offence "for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person". The Criminal Law (Defence and the Dwelling) Act 2011 allows use of
reasonable force
The right of self-defense is the right for people as individuals to commit a crime, violent or non-violent, for the purpose of defending their own life (self-defense) and property, or to defend the lives of others, in certain circumstances. F ...
against someone entering a
dwelling
In law, a dwelling (also known as a residence, abode or domicile) is a self-contained unit of accommodation – such as a house, apartment, mobile home, houseboat, recreational vehicle, or other "substantial" structure – used as a home by ...
"as a trespasser for the purpose of committing a criminal act".
United Kingdom
England and Wales
In English law, trespass to land involves the "unjustifiable interference with land which is in the immediate and exclusive possession of another". Land is defined as the surface, subsoil, airspace and anything permanently attached to the land, such as houses. It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable ''per se''. While most trespasses to land are intentional, it can also be committed negligently. Accidental trespass also incurs liability, with an exception for entering land adjoining a road unintentionally (such as in a car accident). Although previously a pure tort, the
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 (c. 33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
created some circumstances in which trespass to land can also be a crime.
Scotland
Trespass is an offence under Scots Law; however, the legislation was amended under the
Land Reform (Scotland) Act 2003
The Land Reform (Scotland) Act 2003 is an Act of the Scottish Parliament which establishes statutory public rights of access to land and makes provisions under which bodies representing rural and crofting communities may buy land.
Provisions
...
which established universal access rights to most land and inland water. These reforms do not apply (hence trespass remains an offence) to:
*Houses and gardens, and non-residential buildings and associated land;
*Land in which crops are growing;
*Land next to a school and used by the school;
*Sports or playing fields when these are in use and where the exercise of access rights would interfere with such use;
*Land developed and in use for recreation and where the exercise of access rights would interfere with such use;
*Golf courses (although a golf course may be crossed provided no games of golf are interfered with);
*Places like airfields, railways, telecommunication sites, military bases and installations, working quarries and construction sites; and
*Visitor attractions or other places which charge for entry.
United States
Criminal trespass
In most states, a criminal trespass to land is defined by statute and is a
misdemeanor
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than admi ...
.
[E.g. "criminal trespass" in Indiana Codebr>35-43-2-2]
In some states, it may be a
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "''félonie''") to describe an offense that r ...
under certain circumstances (e.g., trespassing on a research facility or school property).
The federal criminal trespass statute primarily prohibits knowingly entering or remaining in any restricted federal building or grounds without lawful authority to do so.
Tortious trespass
When referring to the tort of trespass to land, though the exact elements vary by state, under the
Restatement (Second) of Torts, a trespass to land is committed when, irrespective of whether a person causes harm to any legally protected interest of the other, that person intentionally:
# enters land in the possession of the other, or causes a thing or a third person to do so;
# remains on the land; or
# fails to remove from the land a thing which he is under a duty to remove.
Trespass may be committed on the surface or subsurface of land, or even the space above land, but flight by aircraft in legally navigable airspace which does not unreasonably interfere with the possessor's use and enjoyment of the land is not trespass. A trespass is also committed when a person initially has permission to place an item of
personal property
Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law (legal system), civil law systems, personal property is often called movable property or movables—a ...
on the land of another, but subsequently fails to remove the property once that permission is revoked. A person who intentionally enters land is not relieved from liability for trespass even if the person mistakenly believes they have the right to enter someone else's property or that the property is theirs.
[Restatement (Second) of Torts § 161 (Am. Law Inst. 1979).]
Remedies for the tort include
compensatory damages,
punitive damages
Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
, and
injunctions
An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...
for
continuing trespass.
See also
*
Intrusion
In geology, an igneous intrusion (or intrusive body or simply intrusion) is a body of intrusive igneous rock that forms by crystallization of magma slowly cooling below the surface of the Earth. Intrusions have a wide variety of forms and com ...
*
Invasion
An invasion is a Offensive (military), military offensive of combatants of one geopolitics, geopolitical Legal entity, entity, usually in large numbers, entering territory (country subdivision), territory controlled by another similar entity, ...
*
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person (see below), trespass to chattels, and trespass to land.
Trespass to the person historically involved six separate trespasses: threats, assault, battery ...
*
Right of way
A right of way (also right-of-way) is a specific route that people, animals, vehicles, watercraft, or utility lines travel, or the legal status that gives them the right to do so. Rights-of-way in the physical sense include controlled-access h ...
*
Adverse possession
Adverse possession in common law, and the related civil law (legal system), civil law concept of usucaption (also ''acquisitive prescription'' or ''prescriptive acquisition''), are legal mechanisms under which a person who does not have title (p ...
*
Public nuisance
In English criminal law, public nuisance is an act, condition or thing that is illegal because it interferes with the rights of the general public.
In Australia
In ''Kent v Johnson'', the Supreme Court of the ACT held that public nuisance is ...
*
Freedom to roam
The freedom to roam, or everyone's right, every person's right or everyman's right, is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the ...
References
{{DEFAULTSORT:Trespass To Land
Tort law
Real property law
Anti-protest law