A landowner has the right to exclude persons from trespassing on his/her private property. Every unauthorized and unlawful entry into the private property of another is a trespass at common law. An unlawful intrusion interfering one’s person or property amounts to trespass. Generally, trespass to real property is a wrong against the right of possession[i]
Trespass is an invasion of the exclusive possession of land[ii]. “A simple definition of a civil trespass to real property is an injury to or use of the land of another by one having no right or authority”[iii].
A trespass to real property is the injury to the use of real property without the consent or permission of the person lawfully entitled to possession of the real estate. A trespasser is liable for damages. In order to obtain a recovery for a trespass to real property, it must be established that that the aggrieved party has got an ownership or possessory interest in the property at the time of the trespass[iv].
One is subject to liability to another for trespass, when s/he intentionally:
- enters land in the possession of the other;
- causes a thing or a third person to do so;
- remains on the land; or
- fails to remove from the land a thing which s/he is under a duty to remove.
The elements of trespass to real property are[v]:
- possession of the property by the plaintiff when the alleged trespass was committed;
- an unauthorized entry by the defendant; and
- damage to the plaintiff from the trespass.
A trespass is the result of act or omission. A wrongful failure to leave another’s premises after s/he was asked to do and a refusal to leave another’s premises after withdrawing previous permission results in trespass. A person can obtain permission to erect a structure on another person’s land. However, the right exists till the permission is withdrawn. Failure to remove structure after revoking permission amounts to trespass.
When the actor or a predecessor in interest has placed the structure with the landowner’s consent and failed to remove the same after consent is withdrawn or effectively terminated, a trespass is committed by the continued presence of a structure.
A trespasser is liable for damages irrespective of whether s/he thereby causes harm to any legally protected interest of the other[vi].
Additionally, trespass on the land includes entries on land and the presence on the land of a thing that the actor has a duty to remove
Continuing trespass is an ongoing invasion of possession of property. Continuing trespass exists for the entire time during which one wrongfully remains on the property. When the actor or a predecessor in legal interest fails to remove a thing which s/he has placed on the land, a continuing trespass occurs. Alteration of apermanent structure results in continuing trespass.
[i] Jefferies v. Bush, 608 So. 2d 361, 364 (Ala. 1992).
[ii] Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 232 (Cal. 1982).
[iii] Brown v. Solary, 37 Fla. 102, 112 (Fla. 1896).
[iv] Hutchins v. Strickland, 674 So. 2d 870, 872 (Fla. Dist. Ct. App. 1st Dist. 1996).
[v] Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 32 (N.C. Ct. App. 2003).
[vi] Restat 2d of Torts, § 158.