Trespassing is a legal term that can refer to a wide variety of offenses against a person or against property. Trespassing as it relates to real estate law means entering onto land without consent of the landowner. There are both criminal and civil trespass laws. Criminal trespass law is enforced by police, sheriffs, or park rangers. Civil trespass requires that the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible (regardless of whether a crime has been committed).

Intent and Knowledge Requirements

Traditionally, for either type of trespass -- criminal or civil -- some level of intent is required. Thus, the trespasser must not simply unwittingly traverse another's land but must knowingly go onto the property without permission. Knowledge may be inferred when the owner tells the trespasser not to go on the land, when the land is fenced, or when a "no trespassing" sign is posted. A trespasser would probably not be prosecuted if the land was open, the trespasser's conduct did not substantially interfere with the owner's use of the property, and the trespasser left immediately on request.

xpress Consent

The landowner may indicate -- verbally or in writing -- permission to enter onto the land.

Implied Consent

The existence of consent may be implied from the landowner's conduct, from custom, or from the circumstances. Consent may be implied if the landowner was unavailable to give consent, and immediate action is necessary to save a life or prevent a serious injury.

Homeowner Liability: What if a Trespasser Gets Hurt?

As bizarre as this may sound, there are some limited protections for trespassers if they get injured while in the act, so to speak. Homeowners can typically be liable to trespassers if they willfully injured the person or knew or should have known about the presence of frequent trespassers and kept an unsafe condition.

What does all this mean? Well, let's say you, as a homeowner, set up a booby trap for a trespasser that sets off a shotgun if someone triggers a wire. Now let's say that happens and it causes severe injuries to the trespasser. While this might seem unjust to some, you may be a liable for the injuries the trespasser sustains. More examples include booby traps, trip wires, bear traps, bamboo tiger pits, and other devices.

What are some things you can legally do? For one, if you are concerned about trespassers coming onto your land, start with a "Private Property" or "No Trespassing" sign in a visible place. Not only does it put the trespassers on notice, it conveys your intent to keep your land to yourself and not as a make-shift easement for others. Next, you should consider installing video cameras in the traveled area. The presence of the camera itself can be a deterrent to some. Be sure you are up-to-date on your state's laws regarding videotaping or filming before installing a camera. You can do this by speaking with a local attorney.

Trespass Specifics

Intent. In order to commit criminal trespass, you must either go onto property knowing that you don’t have permission to be there or remain on property after learning that you don’t have the right to be there. Accidentally wandering onto someone’s land while hiking, for example, typically isn’t considered criminal trespass.

Warning or notice required. In many states, laws require there be a warning that you aren’t allowed to be on property before you can be convicted for trespassing on the property. While a property owner can directly tell a trespasser to leave the premises, in many states, there are other ways to provide notice that property is off limits. For example, a sign saying “No Trespassing,” a fence around the property, or a locked door to the property will do the job.

Specific acts considered trespass. Many states have a general description of trespassing and also outline specific acts that count as the crime. Hunting on someone else’s land, cutting down trees without permission, or even tampering with vending machines can be a form of criminal trespass. Entering or remaining in a motor vehicle without the owner’s permission is another common form of criminal trespass.

Elements of Criminal Trespass

The intent element of the crime means that the defendant must be aware that they do not have permission to be on the property, or a legal right to be there. In other words, if the defendant reasonably believes that they own the property, or that it is open to the public, the prosecution probably cannot secure a conviction. Sometimes criminal trespass can arise when someone initially does have permission to be on a property owner’s land, but then the property owner tells them that they need to leave. Refusing to leave can result in charges. (It also may result in other types of criminal charges if a confrontation develops with the property owner.)

The laws of some states require notice to the potential trespasser, since otherwise they might not know that they were trespassing. The property owner can provide verbal notice that another person is not welcome or that they need to leave the property. Sometimes signs or physical indicators, such as a fence or a locked gate, can convey the required notice as well.

Walking onto someone else’s land is the most obvious form of trespass, but it is not the only form. You may be convicted of trespassing if you get into someone else’s car without their permission. Also, state laws may define certain acts that fall within criminal trespassing laws, such as hunting on someone else’s land.

Penalties for Criminal Trespass

Criminal trespass may be charged as a felony, a misdemeanor, or an infraction. If the defendant enters someone else’s home, rather than another type of property, they may face a higher level of charge and harsher penalties. Entering a home may lead to a year in prison, for example, while entering another type of property may result in just two or three months in jail. If the crime is charged as an infraction or a low-level misdemeanor, the defendant may only need to pay a fine and may not face any jail time.

Civil claims based on trespassing proceed separately from the criminal case and have a lower standard of proof. While the prosecution needs to prove the charge beyond a reasonable doubt, a plaintiff in a civil case must establish liability by a preponderance of the evidence (more likely than not). Liability can arise even if the trespasser did not damage the property or cause injuries, although damages will be minimal in these cases. In addition to damages, a property owner may be able to get an injunction against a trespasser to prevent them from continuing to enter the property.