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Trespass to land is a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
or
crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in C ...
that is committed when an individual or the object of an individual intentionally (or, in
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
, negligently) enters the land of another without a lawful
excuse In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, 7th ed. 201 ...
. Trespass to land is ''actionable per se''. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
to remedy the tort. By law, trespass for
mesne profits Mesne (pronounced "mean") profits are sums of money paid for the occupation of land to a person with right of immediate occupation, where no permission has been given for that occupation.Farran, Sue and Paterson, Donald. ''South Pacific Property Law ...
is a suit against someone who has been ejected from property that did not belong to them. The suit is for recovery of damages the trespasser caused to the property and for any profits he or she may have made while in possession of that property. For a trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he entered the property of a particular person. If A forces B unwillingly onto C's land, C will not have action in trespass against B, because B's actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be jointly liable with B for B's trespass. In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia,
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...
may substitute the requirement for intent. If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights. ''See
Adverse possession Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle in the Anglo-American common law under which a person who does not have legal title to a piece of property—usually land ( real property)—ma ...
'' and
Easement An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
by prescription. Trespass may also arise upon the
easement An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
of one person upon the land of another. For example, if A grants B a right to pass freely across A's land, then A would trespass upon B's easement by erecting a locked gate or otherwise blocking B's rightful access. In some jurisdictions trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass. The maxim "cuius est solum, eius est usque ad coelum et ad infernos" (whoever owns the land owns it all the way to heaven and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put up structures to prevent this. The courts have been more lenient with putting up structures to prevent underground trespass. The Kentucky Court of Appeal in '' Edwards v Sims'' (1929) 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reluctant to do so in ''Di Napoli v New Beach Apartments'' (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers. There may be
regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. ...
s that hold a trespasser to a higher duty of care, such as
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
for timber trespass (removing trees beyond a permitted boundary), which is a type of trespass to chattels as a result of a trespass to land. Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner's quiet enjoyment of his rights, there may be an action for
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
, as where a disagreeable aroma or noise from A drifts across the land of B. Trespass ab initio is when a person is granted access to land but then abuses that access. The entry to the land is considered to have been a trespass from the beginning. This only applies to access given by law, not to access given by a person (as established by the Six Carpenters' Case).


Ireland

Trespass in Republic of Ireland law is similar to trespass in English law. The Criminal Justice (Public Order) Act 1994 made it an offence "for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person". The Criminal Law (Defence and the Dwelling) Act 2011 allows use of reasonable force against someone entering a
dwelling In law, a dwelling (also known as a residence or an abode) is a self-contained unit of accommodation used by one or more households as a home - such as a house, apartment, mobile home, houseboat, vehicle, or other "substantial" structure. The ...
"as a trespasser for the purpose of committing a criminal act".


United Kingdom


England and Wales

In English law, trespass to land involves the "unjustifiable interference with land which is in the immediate and exclusive possession of another". Land is defined as the surface, subsoil, airspace and anything permanently attached to the land, such as houses. It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable ''per se''. While most trespasses to land are intentional, it can also be committed negligently. Accidental trespass also incurs liability, with an exception for entering land adjoining a road unintentionally (such as in a car accident). Although previously a pure tort, the Criminal Justice and Public Order Act 1994 created some circumstances in which trespass to land can also be a crime.


Scotland

Trespass is an offence under Scots Law; however, the legislation was amended under the Land Reform (Scotland) Act 2003 which established universal access rights to most land and inland water. These reforms do not apply (hence trespass remains an offence) to: *Houses and gardens, and non-residential buildings and associated land; *Land in which crops are growing; *Land next to a school and used by the school; *Sports or playing fields when these are in use and where the exercise of access rights would interfere with such use; *Land developed and in use for recreation and where the exercise of access rights would interfere with such use; *Golf courses (although a golf course may be crossed provided no games of golf are interfered with); *Places like airfields, railways, telecommunication sites, military bases and installations, working quarries and construction sites; and *Visitor attractions or other places which charge for entry.


United States

In most states, a criminal trespass to land is defined by statute and constitutes a
misdemeanor A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
.E.g. "criminal trespass" in Indiana Codebr>35-43-2-2
In some states, it may be a
felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that res ...
under certain circumstances (e.g., trespassing on a research facility or school property). Remedies between private parties for trespass may include an
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
or money damages. Since 2021, the National Guard has enforced trespassing law more aggressively through Operation Lone Star. While immigrants entering at lawful entry points are processed through federal immigration authorities, this new initiative has resulted in the mass arrest of asylum seekers through enforcement of Texas state trespassing law when migrants fail to present themselves at a lawful entry point. Over a period of seven months, 40% of all Texas state police arrests were solely for trespassing.


See also

*
Intrusion In geology, an igneous intrusion (or intrusive body or simply intrusion) is a body of intrusive igneous rock that forms by crystallization of magma slowly cooling below the surface of the Earth. Intrusions have a wide variety of forms and com ...
*
Invasion An invasion is a military offensive in which large numbers of combatants of one geopolitical entity aggressively enter territory owned by another such entity, generally with the objective of either: conquering; liberating or re-establishing ...
*
Trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
*
Right of way Right of way is the legal right, established by grant from a landowner or long usage (i.e. by prescription), to pass along a specific route through property belonging to another. A similar ''right of access'' also exists on land held by a gov ...
*
Adverse possession Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle in the Anglo-American common law under which a person who does not have legal title to a piece of property—usually land ( real property)—ma ...
* Public nuisance * Freedom to roam


References

{{DEFAULTSORT:Trespass To Land Tort law Real property law