Property Rights: Remedying Trespasses

A landowner has the general property right to exclude others from her land. An invasion of the right to exclude is called a trespass. A landowner or other possessor of the land is entitled to recover actual damages to the land resulting from a trespass.

If the damage is permanent, the measure of damages would be the lost market value or the cost to fix the damage. The possessor is also entitled to foreseeable consequential damages that result from the trespass such as personal injuries.

Even if there isn’t any actual damage, the possessor is entitled to nominal damages compensating her for the wrongful intrusion. She doesn’t have to prove any actual damage in order to win a trespass claim, because the entry itself is a violation of her rights, not just damaging her property.

A landowner also is generally entitled to an injunction preventing a trespass from continuing, such as when the trespass is caused by an encroaching structure. However, if the injunction would harm the defendant much more than it would benefit the plaintiff, the court may deny an injunction.

A landowner is also entitled to an injunction preventing an owner from committing a threatened trespass if damages would be difficult to determine or the harm would be irreparable.

If the trespasser has actually dispossessed her, the rightful possessor can bring an ejectment action to regain possession.

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