What Is Trespassing?

"Trespassing" is a legal term that can refer to a wide variety of offenses against a person or against property. In this tape, we are going to talk only about "trespassing" as it relates to going onto someone's land without consent.

Technically, a person violates the law against trespassing by knowingly going onto someone else's land without consent. "Knowledge" may be inferred when the owner (or the owner's representative) tells the trespasser not to go on the land or when the land is fenced in a manner that suggests that intruders should stay out or there is a "no trespassing" sign in an obvious place.

A trespasser will probably not be prosecuted if the land was open to the public when the trespasser originally entered the land and the trespasser's conduct did not substantially interfere with the owner's use of the property and the trespasser left on request.

Violating this law is a Class C misdemeanor.

The more serious crime of "aggravated criminal trespass" combines trespassing with conduct that would cause fear for someone's safety. This is a Class B misdemeanor. If the "aggravated criminal trespass" is committed in a house or a hospital or a school, it is a Class A misdemeanor.

If a trespasser drives or parks a motor vehicle (including a motorcycle or ATV) on private property reserved for customers or employees of a business and refuses to leave when asked, the trespasser has committed a Class C misdemeanor. This rule applies regardless of whether the business posted a sign warning against trespassing.

Regardless of whether a crime has been committed, a property owner can resort to the law to prevent trespassing. If someone makes a habit of trespassing, the property owner may ask the court to order the trespasser to get off the property and to stay off. If the trespasser causes damage to the owner's property, the owner may also sue for damages.

Sometimes a trespasser continues trespassing for such a long time, the law permits the trespasser to have the right to stay on the land. This right ranges from the right to live on the land to the right to pass across it to get somewhere else.

There are a number of complex rules governing the acquisition of these rights, which are often lumped under the broad title of "adverse possession"; and if you are concerned about acquiring these rights or preventing someone from acquiring rights in your land, you should contact a lawyer.

One common form of trespassing is when a neighbor's driveway or fence encroaches onto someone else's land. Sometimes the owner will not want to make an issue of the encroachment--

either because it seems to be a minor problem or because the neighbor is a friend. To avoid problems later, however, the owner should give the "trespasser" written permission to keep the encroachment for as long as the owner continues to authorize it. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing along this right to future owners of the trespasser's land.

One word of caution: sometimes posting a "no trespassing" sign can backfire. Because the "adverse possession" rules are so complicated, posting a "no trespassing" sign can actually help a trespasser support a claim to the owner's property