In property law, trespassing is defined as being physically present on the property of another without an invitation from, or the consent of, the owner of that property or the owner’s agent. Property law generally recognizes three types of trespass:
- Simple trespass
Simple trespass is defined as being on the property without the owner’s consent. In such cases, the trespasser may not have known that he or she was on another’s property or may have visited the property for a valid reason yet was told to leave by the owner.
- Criminal trespass
If someone is on the property of another without a valid reason, on that property after being told to leave, or in defiance of a posted notice of warning, a criminal trespass may have occurred. These trespasses are usually considered to be criminal acts and can result in the arrest of the trespasser.
A special type of criminal trespass occurs when a trespasser makes a threat of bodily harm to the property owner and then either 1) immediately carries out an illegal act or 2) returns later to perform such an act. In most states, this is called aggravated trespass and is considered to be a serious misdemeanor or even a felony.
- Trespass associated with a child and an attractive nuisance
If a trespasser is a child the usual laws regarding trespass, both criminal and civil, no longer apply. In fact, a special application of civil law can expose a property owner to liability if a child is injured while on their property. In legal terminology, this special application is called the “attractive nuisance” doctrine.
The Civil law holds that a child is incapable of comprehending the consequences of his or her actions. A child may, therefore, trespass on a property without understanding that it is wrong to do so. If, however, a child’s natural curiosity is piqued by some object on a property and that object poses a danger that a child may not comprehend, that object becomes an attractive nuisance.
In its simplest interpretation, the liability of a property owner for injuries caused by an attractive nuisance doctrine is as follows:
- An artificial (man-made and not natural) object exists on a property and this object (swimming pool, discarded appliance, junked car, etc) could cause an injury to a child trespasser.
- A property owner could have or should have foreseen that this object could pose a danger to an unsupervised child.
- A child sees this object (“attractive”) and, unaware of the potential danger it presents (“nuisance”), trespasses in order to explore it.
- The child is injured by the object.
- Since the property owner should have foreseen the potential danger posed by the object and did not take action to either remove the object or to physically restrict access (fences, locks, etc), the property owner is liable for any injury suffered by the child.
In most jurisdictions, a property owner will be held strictly liable for any injuries to a child due to an attractive nuisance. This means that the mere fact an injury occurred is sufficient to establish the property owner’s liability for damages. In such cases, the damages awarded have been known to reach into the millions of dollars.
Responsibilities of property owners
Generally, a property owner does not owe a duty to a trespasser. With that said, property owners do have a duty to maintain their property in a “state of repair” that will reduce the possibility that a visitor, or even a trespasser, could suffer an injury while on that property. A property owner may, however, take any reasonable action to prevent trespassing and/or protect a property from damage by trespassers so long as that action is not intended to deliberately cause a bodily harm or some other injury.
When in doubt, ask an attorney!
Property law, and what legally constitutes trespass, is a topic that is often unfamiliar to the typical property owner. For this reason alone, if a question arises concerning trespass, it is always best to consult with an attorney who is familiar with the local and state laws regarding the rights of property owners.
Homeowner Liability For Trespasser Injuries
Homeowners must be sure to keep the proper amount of insurance to avoid out-of-pocket expenses if an unexpected event arises. Insurance policies cover damage to your home but also covers injuries when someone is hurt on your property. While it may be difficult to believe, you may be held liable when an uninvited guest is injured on or near your home. Below is an overview of personal injury law and how it pertains to homeowner liability for trespasser injuries. If you are facing a lawsuit in a similar situation, it may be a good idea to speak with a lawyer for advice.
What Is A Trespasser?
A trespasser is a person that you have not given permission to be on your property. In many cases, landowners have frequent trespassers such as hunters who routinely enter the property without the knowledge of the landowner. While the law does not require you to protect these people, you can not take steps to injure them.
When Is A Landowner Liable For Trespasser Injuries?
Homeowner liability for trespasser injuries largely depends on the circumstances surrounding the case. If you know there are frequent trespassers entering your property, you may be held liable for unsafe conditions if:
- You Created A Dangerous Condition
- You Do Not Take Steps To Remedy A Dangerous Situation
- You Did Not Think Trespassers Would Discover The Unsafe Conditions Or Be Injured By It
- You Failed To Post A Warning Of The Risk For Trespassers To See
If The Trespasser Is A Child
Homeowner liability changes a bit if the trespasser is a child or minor under the law. In many areas, children wander onto the property and are unable to determine if an unsafe condition exists. There are things that can lure children onto the property, such as swimming pools or trampolines. These are known as attractive nuisances and you must take steps to provide safety measures to keep children from injuring themselves. Property owners could be held liable if a child is hurt or killed if:
- Children Were Likely Or Known To Trespass On Your Property
- A Dangerous Condition Existed
- The Child May Not Be Old Enough To Understand The Potential Risk
When it comes to children, homeowners must take steps above posting danger signs around the home. If you have a swimming pool, you are required to take appropriate steps to prohibit access from wandering children. This means placing a fence around your pool may not be enough, but placing a fence with gait locks that children cannot reach may reduce your liability.
In most states, homeowners must avoid activities that place trespassers in danger on their property. This means target practice or skeet shooting may mean you are liable if someone is accidentally shot on your property, even if they are not invited. Homeowners cannot use deadly force simply to protect property in most states. However, stand your ground laws may protect homeowners who use deadly force to protect themselves and their loved ones if a trespasser is armed and they are in fear for their life. Placing hazards intended to trap or injure someone who is attempting to break into your home will require you to be liable for their injuries or wrongful death in most situations. This area of the law is complex and can be difficult to interpret, so it is best to speak with a personal injury attorney for advice.
When it comes to homeowner liability and trespassers, it can be difficult to determine who is at fault when an injury occurs. While it seems impossible that you could be held liable for injuries sustained by an uninvited guest, it can be the case if certain circumstances exist in the case. If you are a homeowner facing liability for trespasser injuries, it is a good idea to speak with an experienced attorney to discuss all of your options available under the law in your state.
Hunting Animals and Trespassing
The laws on hunting animals and trespassing vary depending on the state in question. Local law enforcement and wildlife agencies enforce hunter trespass laws. In many states, the consent of a property owner is necessary for anyone who wants to trespass with the intent of hunting. However, in some states, hunter trespass regulations are stricter. The following web page seeks to describe what trespassing is, and the relationship between hunting animals trespassing and hunting animals.
What is Trespassing?
Trespassing refers to various offenses against an individual or property. In relation to real estate laws, trespassing is entering land without the permission of the estate owner. Trespass laws can either be criminal or civil. Criminal laws are enforced by rangers, sheriffs, and police whereas civil laws require landowners to file a claim for damages against the trespasser.
Intent vs. Knowledge Requirements
For a person to be convicted of trespass, the property owner must show intent. This means that trespassing is not unwittingly entering another’s estate but is knowingly moving into the property without the owner’s consent.
Knowledge is inferred when a property owner:
- Puts a fence around their land,
- posts a “no trespassing” sign,
- Or expressly tells a person not to go to their estate.
A trespasser may not face prosecution if, the estate was open, their conduct did not interfere with the use of the land, or if they left immediately upon the owner’s request.
Express Consent vs. Implied Consent
Express consent is where the owner of land indicates, either in writing or by word of mouth, permission to enter their property. Implied consent arises from custom, circumstances, or the owner’s conduct. Implied consent may arise if the owner of the property was not available to give permission, and urgent action was required to prevent injury or save a person’s life.
Hunting and Trespassing Laws
A hunting license does not allow a person to trespass on another’s property to hunt. In some states, there are certain laws dealing with hunting animals and trespassing, while in others, the general trespassing laws of the state also apply to hunters.
In most of the states, owners are not required to post their land to prevent trespassing. In these states, hunters who trespass on property without the owner’s consent are committing an offense even if the estate is not posted. In states where posting of land is required, there are general guidelines of how it should be done. For example, in Alabama, there are no posting requirements; hunting requires the consent of the estate owner. In Louisiana, posting of land is required. In Arizona, hunters are only forbidden from entering posted land.
Firearms, Wounded Animals, and Dogs
In some states, armed trespass is regarded a felony that is punishable by a fine or imprisonment. For example, in Florida, a trespasser who bears a firearm is subject to a $5,000 fine or five years in prison. Furthermore, anyone who knowingly propels a lethal projectile across private property without the owner’s authorization is also guilty of felony trespass. A lethal projectile is any projectile launched from a crossbow, bow, or firearm.
In few states, unarmed hunting trespass is allowed. For example, in Iowa and Louisiana, unarmed trespass, for the purpose of retrieving an injured animal on private property is allowed. In Kansas, hunters are allowed to pursue wounded animals on private property except when the owner asks the hunters to leave their property.
In some states, hunters can retrieve wounded animals or dogs if they are legally allowed to hunt on that particular land. For example, in North Dakota, a hunter can enter posted land to retrieve a wounded animal if they are legally permitted to hunt.
Permission to Hunt
In some states, the owner’s permission is required for a person to hunt on private property. In Utah and Maryland, written permission is needed for a person to enter private property to hunt. The owner of the property is not responsible for any injuries incurred by the hunter while on their estate. In South Dakota and Texas, the owner’s consent is mandatory for anyone intending to hunt on private property.
Knowledge of the law on trespass and hunting is required if you are a recreational hunter. A breach of these laws could mean huge fines, imprisonment, or even losing your hunting license. It is advisable to consult a lawyer about the laws on hunting animals and trespassing in your jurisdiction.
adverse possession continuous trespassers rights
The Rights of Property Owners, Adverse Possessors, and Continuous Trespassers
A cornerstone of the American concept of ownership of real property is that the owner of a property has exclusive right to use that property as he or she desires, at least so far as the use does not result in harm to another or run afoul of the statutory law or administrative regulations. It is, therefore, a shock for many property owners to learn that there are provisions of law in every state that allow someone else to effectively take control of at least a part of their property for their own use. This is known variously as “squatter’s rights” or, more formally, as “adverse possession.”
Adverse possession is the legal doctrine that was developed during the American colonial and post-revolutionary periods regarding ownership of land in an era when there was much more land available to be developed than there were people available to do that developing. If there was no clear ownership of a parcel of land, the person who converted land from its “wild” state to something “productive” was considered to be its rightful owner after a set period of time.
In our current era, the right to land by adverse possession is governed by the statutory (“on the books”) law of the state in which the land is located. Since anyone making a future claim by right of adverse possession must have been a trespasser at one time, there must be some set of principles that separate a potential adverse possessor from a from a “habitual” or “continuous” trespasser. These principles are:
- Principle of Hostile Claim
The trespasser must occupy the land in question by either 1) a willful, deliberate act of trespass; 2) making an “honest mistake” in believing that he or she is not trespassing, or 3) by simple occupation without knowledge of its ownership.
- Principle of Actual Possession
The trespasser must be physically present on the land and treat that land as if he or she had an actual title to that land, such as clearing the land or building a structure. Occasional recreational use of land is not considered actual possession.
- Principle of Continuing Possession
The trespasser must have had a continuous, unbroken presence on the land for a certain number of years and not have shared possession with anyone other than a spouse.
- Principle of Notorious Possession
The trespasser has made no attempt to hide the fact that he or she was present on the land that could not have been detected by a casual inspection by the property’s rightful owner.
The above-mentioned principles are, of course, generalizations that may vary considerably between states. We can now turn to the some of rights and responsibilities of rightful owners and continuous trespassers.
1) Neither the owner nor the potential adverse possessor of a property may “set a trap” or some other device that is intended to cause bodily injury to another person or unreasonable damage to another’s personal property.
2) Neither party may resort to an illegal act (e.g. arson or reckless gunfire) to force the other party from the property.
3) An owner cannot use unreasonable or illegal force to remove the trespasser but must instead rely on law enforcement agencies to physically eject a trespasser but, once the trespasser is removed, the owner may take any reasonable steps to prevent the trespasser’s physical return.
4)Once a party has petitioned for and been granted ownership of a property by means of adverse possession, access to the new owner’s land cannot be restricted in any way by the former owner except through legally permissible means such as refusing to grant an easement.
As always, these generalizations cannot take the place of legal counsel. Those with questions regarding the above are encouraged to seek the advice of an attorney with experience in land possession and land title law.