Property Disputes

Property Disputes

Property Rights: What Constitutes a Trespass

A landowner has the right to exclude others from their land. Some say the right to exclude others is what makes something private property. An invasion of the right to exclude is called a trespass.

A trespass is an intentional, wrongful entry onto another person’s land, without the owner’s permission and without a legal privilege to do so.

A person may enter the land by causing things to enter the land, without actually stepping foot on the land, such as by throwing things onto the property, allowing a dog to cross the property boundary or flooding the property.

A trespass may be intentional or negligent. A person commits an intentional trespass as long as they intentionally take the action that interferes with the plaintiff’s right to exclude. An entry resulting from intentional action is a trespass even if the trespasser didn’t mean to trespass or didn’t realize that their action would be a trespass, unless perhaps a court feels that the trespasser’s mistake was excusable.

An intentional trespass may entitle the owner/possessor to a remedy at law. On the other hand, a negligent action that unintentionally results in an entry on the land is a trespass only if it causes harm.

Entering without permission

If the landowner consents to an entry, the entry obviously isn’t wrongful and isn’t a trespass. The owner’s permission to enter the land is called a license. The landowner can revoke their permission anytime, however. If they does, the licensee becomes a trespasser if they remain on the land.

Even a person who is lawfully on the property can commit a trespass by exceeding the scope of their license or privilege to be on the property. There are volumes of examples that may apply. You should consult with a property lawyer to understand your rights.

Entering without privilege Exception for the right to exclude

• Entering the land reasonably to abate a nuisance if the owner hasn’t or won’t do so themselves
• Entering the land to retrieve one’s personal property that’s on the other person’s land (for example, a tenant’s lease may terminate or a licensee’s license may be revoked while they still have some of their personal property on the land; they have the right to enter the land within a reasonable time to retrieve their personal property)
• Entering the land out of necessity, to prevent serious harm to person or property
• A law enforcement officer entering the land with authority
• Entering the land as reasonably necessary to perform a duty or exercise authority created by law, such as governmental inspectors or firefighters

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