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What is “Trespassing”?

Although sometimes used as a verb–trespassing–the legal name for the cause of action that arises when someone enters another person’s property without permission is actually Trespass.

THE ELEMENTS OF TRESPASS.

Legally speaking, “trespass” requires:

1. Knowing entry

2. Onto land owned by someone else

3. Without the owner’s permission.

IS TRESPASS A CRIME OR A TORT?

Trespass can be either a tort, a crime, or both, depending on the circumstances and the laws that apply to the defendant’s conduct.

Criminal trespass depends upon the laws of a given state, county, or municipality, and may or may not apply in the same situations where the property owner can sue a private individual for trespass under the civil law.

Trespass is wrong because it represents an interference with a property owner (or legal possessor)’s  right to enjoy the benefits of owning (or possessing) land. Among these rights–and among the most important of them–is the right to control who can and cannot enter property. Trespassers violate this right by entering property without the permission of the person who has the legal right to grant or withhold that permission.

IS PHYSICAL ENTRY ON PROPERTY REQUIRED FOR TRESPASS?

No. A person can trespass on property even if he or she never actually sets foot on the land. This occurs when the defendant throws or places objects or substances on the property–even if he or she does so without entering the land.

Any physical intrusion by a person, substance, or object is sufficient to constitute an actionable trespass, if the other elements of the cause of action are met.

Intangible intrusions are actionable too, but only if they cause physical damage or harm to the land. For example, while the smoke from a neighbor’s barbecue might be annoying to the neighboring homeowner, there is no “trespass” unless the smoke causes actual, measurable physical damage. That said, intangible intrusions like barbecue smoke, if severe enough, may rise to the level of actionable nuisances for which an injunction or damages could be available.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR, ROSS LAW, OR THIS WEBSITE AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Trespass claims are complicated and fact-dependent. If you believe you have a trespass claim, have had a trespass claim asserted against you, or are involved in any other type of legal claim or matter, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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