In property law trespassing is defined as being physically present on the property of another without an invitation from, or the consent of, the owner of that property or the owner’s agent. Property law generally recognizes three types of trespass:
- Simple trespass
Simple trespass is defined as being on the property without the owner’s consent. In such cases, the trespasser may not have known that he or she was on another’s property or may have visited the property for a valid reason yet was told to leave by the owner.
- Criminal trespass
If someone is on the property of another without a valid reason, on that property after being told to leave, or in defiance of a posted notice of warning, a criminal trespass may have occurred. These trespassers are usually considered to be criminal acts and can result in the arrest of the trespasser.
A special type of criminal trespass occurs when a trespasser makes a threat of bodily harm to the property owner and then either 1) immediately carries out an illegal act or 2) returns later to perform such an act. In most states, this is called aggravated trespass and is considered to be a serious misdemeanor or even a felony.
- Trespass associated with a child and an attractive nuisance
If a trespasser is a child the usual laws regarding trespass, both criminal and civil, no longer apply. In fact, a special application of civil law can expose a property owner to liability if a child is injured while on their property. In legal terminology, this special application is called the “attractive nuisance” doctrine.
The Civil law holds that a child is incapable of comprehending the consequences of his or her actions. A child may, therefore, trespass on a property without understanding that it is wrong to do so. If, however, a child’s natural curiosity is piqued by some object on a property and that object poses a danger that a child may not comprehend, that object becomes an attractive nuisance.
In its simplest interpretation, the liability of a property owner for injuries caused by an attractive nuisance doctrine is as follows:
1. An artificial (man-made and not natural) object exists on a property and this object (swimming pool, discarded appliance, junked car, etc) could cause an injury to a child trespasser.
2. A property owner could have or should have foreseen that this object could pose a danger to an unsupervised child.
3. A child sees this object (“attractive”) and, unaware of the potential danger it presents (“nuisance”), trespasses in order to explore it.
4. The child is injured by the object.
5. Since the property owner should have foreseen the potential danger posed by the object and did not take action to either remove the object or to physically restrict access (fences, locks, etc), the property owner is liable for any injury suffered by the child.
In most jurisdictions, a property owner will be held strictly liable for any injuries to a child due to an attractive nuisance. This means that the mere fact an injury occurred is sufficient to establish the property owner’s liability for damages. In such cases, the damages awarded have been known to reach into the millions of dollars.
Generally, a property owner does not owe a duty to a trespasser. With that said, property owners do have a duty to maintain their property in a “state of repair” that will reduce the possibility that a visitor, or even a trespasser, could suffer an injury while on that property. A property owner may, however, take any reasonable action to prevent trespassing and/or protect a property from damage by trespassers so long as that action is not intended to deliberately cause a bodily harm or some other injury.
Property law, and what legally constitutes trespass, is a topic that is often unfamiliar to the typical property owner. For this reason alone, if a question arises concerning trespass, it is always best to consult with an attorney who is familiar with the local and state laws regarding the rights of property owners.