What Is ‘Trespass to Land’ under Tort Law and Some of the Defenses?

The bottom line is if someone goes on to your land, they’re trespassing and you’re entitled to sue them. Sometimes it may just be a dollar that you could get as nominal damages because there was no real harm done. Sometimes it can be billions of dollars depending on whether it was radioactive waste dumped on your land.

What Is ‘Trespass to Land’ under Tort Law?

A trespass to land is a tort that refers to the intentional wrongful act of entering another’s property without their permission and protects a person’s possession of the land. There is no substantial injury requirement for the trespass to land to occur but only the intent to enter another’s property.

A trespass to land can include your neighbor entering your land by accident or if they are playing golf on their land and the golf ball lands on your property. Such situations would constitute a trespass to land, and you may hold your neighbor liable.

Elements of Trespass to Land

There are two elements of trespass to land, and it includes:

• Interference with the right of exclusive possession
• The intent of entering or negligence.

Proving Trespass to Land

To hold the defendant accountable for trespass to land, the plaintiff must prove the following:

• Entry: The plaintiff must prove that the defendant intended to enter the land willfully or wrongfully. Entering the property by mistake or causing an object to enter another’s property also comes under trespass to land.
• Another’s property: An individual with a legal interest in the property, either the owner or the property’s tenant, may be able to bring a trespass to land claim.
• Lack of owner’s consent: The consent must be either expressed or implied to enter one’s property. For example, a police officer has implied consent to enter a property while guests at a dinner party have express consent.
• Damages: Whether or not the defendant intended to cause the harm is irrelevant to recover damages. The plaintiff must prove that the defendant’s actions resulted in the harm suffered.

The plaintiff must show that the defendant came onto their land regardless of whether they were negligent or did it intentionally.

Under the law, the plaintiff has the burden of proof to provide evidence of actual possession of the land before they can continue with their legal action against the defendant.

Besides the land’s actual possession (de facto possession), the plaintiff may have the right to immediate possession and can sue another person for trespassing (trespass by relation). For example, a lessor may have the right to immediate possession after a lease expires.

Even a person in wrongful possession of land may be able to sue for damages for another person trespassing on that land.

For it to be trespassing, the land must belong to another person, and the plaintiff must bring a claim against the individual who does not have a legal right to enter the land.

The plaintiff must also prove that the defendant did not have express or implied consent to enter the land. The entry must be completely unauthorized, meaning the plaintiff cannot bring a trespass to land claim against individuals with implied consent or lawful authority to enter your property, such as police officers or mail carriers.

However, police officers must not abuse their authority to enter the land, which can result in trespass ab initio, which is why they may require search warrants.

In certain states, the plaintiff must show that the defendant’s actions resulted in harm to the plaintiff or the plaintiff’s land, regardless of whether the defendant had the intention to cause harm. 

In many states, simply entering the land or neighboring property can be sufficient for an individual to bring a trespass to land claim, even if the defendant does not cause damages.

Is It Necessary for the Defendant to Have the Intent to Enter Another’s Property?

The defendant must have the intent to enter another’s property or land for the owner or tenant to bring a trespass to land claim.

If the defendant intended to enter another’s property or land without a valid defense, they might be liable for trespass to land.

The concept may sound confusing so let’s look at an example. Suppose there are two plots of land, A and B, and a person intends to trespass on land A but instead ends up trespassing on land B by accident.

In such situations, the person may be liable as they intended to enter a land they did not have legal possession of.

The defendant cannot also argue that they entered someone else’s land by mistake. In Basely v Clarkson (1681), the defendant was mowing his own land when they accidentally mowed part of the grass on the plaintiff’s premises.

During court proceedings, the defendant argued that it was a mistake, but the court ruled in favor of the plaintiff awarding him two shillings.

Remedies for Trespass to Land

The plaintiff may pursue the following remedies after a party trespasses on their land:

• Damages
• An injunction (court order)
• Plaintiff may use reasonable force to remove the trespasser (not advised)
• Recovery of land in case the defendant deprived the plaintiff of the lawful possession of their land without lawful justification.

What Are the Defenses for a Trespass Claim Filed by the Property Owner?

Several defenses an individual may use can help diminish or reduce the damages, including the following.

Consent

The defendant can prove that the plaintiff gave consent (in words or actions) for them to enter the land.

However, there are exceptions to this, including consent arising from fraud or consent provided by a minor or a mentally incapable person.

Public Necessity

A person may enter another’s land if there is an immediate need to protect the person or community.

However, if the defendant’s actions are unreasonable, they cannot use the public necessity defense.

Private Necessity

If a person’s life is endangered, they may enter another’s land without consent to protect themselves. However, the private necessity defense is often limited and used in very few situations.

Privileged Invasion

Privileged invasion allows a person to enter another’s land to recover personal property.

There are a few reasons why the person entering the land without consent no longer has the property, including the plaintiff’s fault or an act of God.

Is Trespass to Land Different than Criminal Trespass?

Criminal trespassing falls under the criminal justice system, and the remedy for that could result in an arrest and criminal proceedings. 

Police officers and other law enforcement officers enforce criminal trespass laws. Criminal trespass to land occurs when a person enters another’s land and steals personal property.

Schedule a Free Consultation with Ehline Law Trespass Law Specialists

If you suffered injuries or damages due to another person trespassing on your land, contact us at (833) LETS-SUE for a free consultation with our legal experts.