Property Rights: What Constitutes a Trespass - dummies

Property Rights: What Constitutes a Trespass

By Alan R. Romero

A landowner has the general property right to exclude others from her land. Some say the right to exclude others is what makes something private property. An invasion of the right to exclude is called a trespass.

A trespass is an intentional, wrongful entry onto another person’s land, without the owner’s permission and without a legal privilege to do so.

Entering the land

One enters another’s land if she physically crosses a boundary onto that person’s land. She may enter on the surface of the land, of course, but she also may enter above or below the surface, because ownership of land extends below the earth and above the earth for some distance that’s reasonably useable in connection with the surface.

Therefore, if a miner tunnels underneath the surface and crosses the boundary onto another person’s land, she has entered the land. Likewise, if a person flies an airplane low across another person’s land, she has entered the land even though she never touches the earth.

A person may enter the land by causing things to enter the land, without actually stepping foot on the land, such as by throwing things onto the property or flooding the property.

Intending to enter

A trespass may be intentional or negligent. A person commits an intentional trespass as long as she intentionally takes the action that interferes with the plaintiff’s right to exclude. An entry resulting from intentional action is a trespass even if the trespasser didn’t mean to trespass or didn’t realize that her action would be a trespass, unless perhaps a court feels that the trespasser’s mistake was excusable.

Such an intentional trespass is always a trespass entitling the rightful possessor to a remedy.

On the other hand, a negligent action that unintentionally results in an entry on the land is a trespass only if it causes harm.

Entering without permission

If the landowner consents to an entry, the entry obviously isn’t wrongful and isn’t a trespass. The owner’s permission to enter the land is called a license. The landowner can revoke her permission anytime, however. If she does, the licensee becomes a trespasser if he remains on the land.

Even a person who is lawfully on the property can commit a trespass by exceeding the scope of her license or privilege to be on the property. Here are some examples:

  • An easement holder uses the property beyond the scope of her easement by overburdening the servient estate, benefitting nondominant land, going outside the boundaries of her easement, and so on.

  • A licensee exceeds the scope of her license. For example, a real estate agent uses a house listed for sale for a weekend getaway.

  • A person enters in a governmental capacity and exceeds the scope of his authority, such as a law enforcement officer who enters a property lawfully but then steals something from the premises.

  • A person enters lawfully but leaves something on the property and doesn’t remove it within a reasonable time.

Entering without privilege

A person may have a legal privilege to enter property even though she doesn’t have the owner’s consent. Privileges thus are exceptions to the property owner’s right to exclude. Privileges take many forms, but here are some examples:

  • Entering the land reasonably to abate a nuisance if the owner hasn’t or won’t do so herself

  • Entering the land to retrieve one’s personal property that’s on the other person’s land (for example, a tenant’s lease may terminate or a licensee’s license may be revoked while she still has some of her personal property on the land; she has the right to enter the land within a reasonable time to retrieve her personal property)

  • Entering the land out of necessity, to prevent serious harm to person or property

  • A law enforcement officer entering the land with authority

  • Entering the land as reasonably necessary to perform a duty or exercise authority created by law, such as governmental inspectors or firefighters

A person who has a privilege to enter land may still be liable if she causes substantial harm to the property or exceeds the scope of the privilege.