Trespass to Land – Illegal Access to Property

Trespass to Land is a common law tort or crime committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is criminal and therefore, the party whose land is encroached on may take a legal action even when there is no actual harm is done on the property.

Under this criminal concept, the only intent required for this claim, is the intent to enter the property. And even if your neighbor accidentally crosses from their property into your zone, he can be legally responsible for trespass. A trespass may also be considered when someone causes a physical item, like a golf ball to enter your property. Substantial injury is not required.

Trespass to land happens as when a person directly enters upon another’s land without permission, or remains upon the land or places or projects any object upon the land.

Proving Trespass to Land Claim

To prove that a defendant (perpetrator) is accountable for trespass to land, you will have to show that four separate actions happened:-

• Entry: The defendant must intend to enter the land which is the subject of the trespass. It is not mandatory that the offender intended to do so unlawfully. Hence entering land by mistake can be a trespass in some cases. Triggering an object or thing to enter somebody’s property can also be measured trespass.
• Property of another: A trespass claim should be brought by an individual with a legitimate interest in the property, for instance the owner or tenant.
• Without Owner’s Consent: Access onto the property must be unsanctioned, either explicitly or indirectly. For example, the police has implied consent to access most property, so a trespass cause of action would not be considered such scenarios.
• Damages: In most countries, to establish a feasible claim, some injury or damage must be suffered. The defendant doesn’t necessarily have to intend to cause the harm, but the offender’s manner must be a sizeable factor in causing the destruction suffered.

The physical action of interference onto land, even minus substantial damages, is normally suffice to back up a trespass claim. In some countries, annoyance and discomfort are enough occurrences to build up a trespass to land.

Ways in Which Trespass to Land May Occur

1. Entering upon land

Walking onto land minus approval or refusing to leave when authorization has been withdrawn, or throwing objects onto land are all considered trespass to land.

2. Trespass to the airspace

Trespass to airspace above the land may be committed. For instance putting up an advertising board to project into one’s property at ground level and another above ground level. Or passing unauthorized power electric wires through somebody’s land is also trespass.

3. Trespass to the ground beneath the surface

Trespass on ground may be by mining or creating any form of project beneath one’s property.

What Damages Are Available?

A landlord or tenant has got a right to compensation for the harm triggered by the trespass. Basing on the type of the trespass, one may manage to recover for the following damage:

• Costs of restoration
• Physical damage to the person or to the land
• Loss of market value
• Loss of use of the property
• Annoyance and discomfort
• Emotional distress

When an everlasting injury to real property happens, the overall measure of damages is the loss of the fair market value. In situations of momentary injury, the cost to repair or restoration is what is based on for an award. However, when the cost to repairing or restoring surpasses the reduction in market value to such a point that repairs are no longer economically realistic, then damages are awarded only for the loss of market value.

In some cases, you may need compensation for any damages but just want the trespass to stop. Putting an injunction is always the best option to end repeated encroaching. In many countries, courts will avail you with documents to log in your injunction request. Contact the clerk of the court or a lawyer to comprehend your filing necessities. When an injunction is issued, the court will order the trespass to stop. In case the offending conduct goes on, the police will implement the injunction and the proper owner may file for the contempt of court.

Liability for Injury to Trespassers

Normally, a property owner or a tenant is not liable for the injuries of a trespasser, but this does not mean the property owner owes no duty to an intruder. The following are situations are where a trespasser can be liable for damages suffered by someone not rightfully on your property:-

• Discovered Trespassers

In the event the property owner or tenant discovers or forestalls trespassers, they must warn or make safe concealed, unsafe, artificial circumstances involving risk of death or grave physical harm. You don’t necessarily need to see the trespassers to know of their existence. A path worn in the earth or trash left behind in a structure is adequate to make trespassers get known.

• Willful and Wanton

In most areas, a property owner or tenant cannot undertake acts that they well know will injury a trespasser. For instance, you can’t put traps to catch or deter trespassers, even if they are damaging your property.

Frequent Questions About Trespass to Land