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What Is Trespassing?

An owner of property has a right to use their property in any legal manner, and that includes the right to prevent other people from entering the property. The crime of trespass is entering on the property of another without permission or proper authority. Or, trespass can be committed when a person enters property without knowing that they do not have a right to be there, but remain after being asked to leave.

For example, a trespasser may start out as a guest of the property owner, but can become a trespasser if they do not leave when asked to do so. Police, sheriffs and park rangers enforce criminal trespass laws.

What Is Civil Trespass? What Is Criminal Trespass?

In both state and federal courts, legal actions are divided into civil and criminal categories. Each is defined by a separate set of laws and have separate sets of consequences. A civil lawsuit for trespass is initiated by the owner of land which the defendant in a civil action has entered without permission or authority. The owner seeks money damages to compensate them for any actual harm done to the property.

Most states require that the landowner prove actual harm to their property in order to recover damages in a civil action. However, the landowner does not need to prove that the harm was intended, only that the trespass was intended. Because civil trespass is a matter of state law, the law may vary from state to state.

In a criminal action, the district attorney, who represents the interests of a governmental jurisdiction, for example, a county, brings the criminal action against the defendant. The district attorney seeks criminal penalties when they charge a defendant with the crime of trespass. Criminal penalties can include fines or time in jail or prison or both.

In both civil and criminal trespass, the trespasser must enter on the property of the owner with the knowledge that they do not have the permission or authority to do so. The trespasser must have the intent to trespass. So a person who accidentally wanders onto land owned by another person cannot be guilty of criminal trespass or liable for civil trespass.

Intent can be inferred from the circumstances of the case. For example, if the owner has told the trespasser that he is not allowed to enter his property, it can be inferred that the trespasser had intent. Or, if the property is fenced or posted with “no trespassing” signs, and a person enters the property anyways, it can be inferred that the person knew they did not have permission to enter, but entered with the intent to trespass.

What Are the Consequences of Criminal Trespass?

Criminal trespass also is usually a matter of state law, so the consequences and punishment for trespass vary from state to state. In most states there will be degrees of trespass; first degree trespass would be the most serious form of the offense.

A charge of first degree trespass might be lodged in a case in which the offender entered a person's home, private business or land that was clearly fenced and marked “no trespassing” with the intent to commit a crime on the property. Or, a person might be charged with first degree or felony trespass if they entered a manufacturing facility, power plant or other type of key facility.

Second degree trespass would be treated less severely and would involve a trespasser who mistakenly entered property that was not clearly marked against trespassing.

In some states, the district attorney might be able to choose to charge the crime as a misdemeanor or a felony; a felony charge is more serious than a misdemeanor in terms of possible penalties. If the trespass involved a firearm or other weapon, then a district attorney will regard it as a serious criminal offense and charge it as a felony. If a person participated in a trespass with others who had firearms or explosives, that person could be charged with a first degree felony trespass.

The crime of trespass can also include tampering or harming other kinds of property. For example, inflicting damage on trees located on another person's property can be the basis for a trespass charge. Entering another's car without permission could be a kind of trespass.

Most states provide for a sentence of a term in jail, but a person convicted of trespass is rarely sentenced to jail time. If such a sentence is imposed, it is for a short period of time. A fine can be imposed as well, but would usually involve a relatively small amount of money in the range of $25 to $100. A person convicted of trespass might also be required to pay court costs.

Of course, if weapons are involved, e.g. firearms or explosives, or if the person enters a key facility of some kind with the intent to commit a crime, the crime is regarded as a serious one. The penalty might include a period of up to four years in prison, and a substantial fine of several thousand dollars might be imposed. The exact punishment depends on the state and the facts of the offense.

A person convicted of any crime, including trespass, might be sentenced to probation. When a person is on probation, they must follow the conditions of probation. Conditions might include such terms as not committing any additional criminal offenses, and paying fines imposed or court costs and the like. If the conditions are not met, the probationer may have the period of probation made longer or may be ordered to serve some jail time.

What Are the Legal Defenses For Trespassers?

There are a number of ways to beat a trespassing charge. A trespasser would probably not be charged with criminal trespass if the land on which the trespass occurred was not fenced but open. Also if the conduct of the trespasser did not substantially interfere with the owner's use of the property, a crime would not be charged. Finally, if the trespasser is discovered by the owner and leaves immediately on request, this would be a defense in a case of criminal trespass.

The best defense, however, might be to argue that the trespasser did not know that they had entered on private property. For example, a hunter might be able to show that they tracked their prey through the woods and entered onto private property in a place where no sign was posted. So they did not have the intent to trespass, which is a required element of the crime.

A person who enters property that is neither fenced nor posted, does not interfere with or harm the property in any way and leaves if asked would probably not even be charged with criminal trespass.

What If I Am Arrested for Trespassing or a Lawsuit is Filed Against Me For Trespassing?

If you are arrested for trespass, you should definitely consult an experienced criminal lawyer. A lawyer can analyze the facts and inform you of possible defenses. They can negotiate with the prosecutor who has charged you. A lawyer will give you your best chance of successfully defending a charge of trespass.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.